The Constitutional Court found no 94 / 2007 Coll.

I. Paragraph 5 (1) of the second sentence of Decree No. 330 / 2001 Coll., on the remuneration and compensation of the bailiff, on the remuneration and reimbursement of the expenses incurred by the trustee and on the conditions of liability insurance for damage caused by the executor, as amended, shall be deleted from the date of publication of this finding in the Collection of Laws.

II. Article II (1) of Decree No 233 / 2004 Coll., amending Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the expenses incurred by the manager and on the conditions of liability insurance for damage caused by the executor, shall be deleted from the date of the publication of this finding in the Collection of Laws.

III. Article II (1) of Decree No 291 / 2006 Coll., amending Decree No 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the completed expenses of the manager of the undertaking and on the conditions of liability insurance for damage caused by the executor, as amended by Decree No 233 / 2004 Coll., shall be deleted from the date of publication of this finding in the Collection of Laws.

1. The Constitutional Complaints received by the Constitutional Court on 29.9.2004, the complainant, the trading company E., s. r. o., requested the annulment of the order of the District Court for Prague 3 of 20.7.2004 No E-Nc 11895 / 2002-52, which confirmed the order for recovery of the costs of execution issued in the execution procedure in which it acts as a compulsory body. It claimed that the contested order infringed its right laid down in Article 36 of the Charter of Fundamental Rights and Freedoms ("the Charter '), which justified the development of the execution procedure, in particular its final stage in determining the costs of execution and their reimbursement. In particular, the Court of First Instance argued that it did not take account of the provisions of Section 11 (2) of Decree No. 330 / 2001 Coll., on the remuneration and compensation of the executor, on the remuneration and reimbursement of the expenses incurred by the executor and on the conditions for liability for damage caused by the executor, as amended by Decree No. 233 / 2004 Coll., amending Decree No. 330 / 2001 Coll., on the remuneration and compensation of the executor, on the remuneration and reimbursement of the expenses incurred by the executor and on the conditions for liability for damage caused by the executor. It pointed out that, when it voluntarily paid the entire debt without having a share of the execution, the execution had been waived and, therefore, the remuneration of the executor should have been determined in accordance with Paragraph 11 (1) (a) of the Decree cited, i.e. only 50%. In addition, in the event of entitlement to full remuneration pursuant to § 11 (2) of the Decree cited, the necessary conditions were not met or the condition laid down in § 11 (2) (a) was not met. The proceedings shall be conducted under point I.ÚS 639 / 04.

2. Case E-Nc 11895 / 2002 The Constitutional Court found that it had submitted an application against the complainant for an execution order pursuant to Act No. 120 / 2001 Coll., on judicial executors and enforcement activities (execution order) and on the amendment of other laws, to obtain a claim of CZK 2 303 588 with accessories. By order of 24 October 2002 No E-Nc 11895 / 2002-9, the execution was ordered and the execution was entrusted to the court executor of the Executive Office Prague 4, JUDr. D. K. It further appeared from the file that the subsequent execution orders for execution were delivered to the debtor by ordering two claims from the account, selling the property and selling the movable goods. On 1 December 2003, the court executor issued an order to pay the costs of execution No. Ex 236 / 02- 59, in which he set a total amount of CZK 278 467 (of which CZK 276 CZK 408,60 reward of the executor for the execution, reimbursement of the final expenses 1 585,90 and compensation for the delivery of CZK 472,50), against which the complainant raised objections based on the claim that the basis for determining the remuneration for execution is the amount of the executor's payment, but that the executor only issued execution orders affecting the property values of the debtor, but the debtor has complied with entirely voluntarily, partly directly justified, partly on the account of the executor. The court which, by order of 16.2.2004 sp. v e-Nc 11895 / 2002, annulled the order in the statements at issue when it agreed with the complainant's position that the basis for determining the remuneration was the amount of the performance recovered, it would therefore be necessary for the executor to state in the justification of the execution order what amount was recovered (not enforced) and how the resulting remuneration was then calculated. On 2 May 2004, the court executor issued a new order to pay the costs of execution No E 236 / 02- 89, which determined the cost of execution of a total of CZK 384 040 (of which CZK 382 796.50 reward of the executor, CZK 708 compensation of the final expenses, CZK 535.50 compensation for delivery - note that when determining the amount of the remuneration, the executor was based on the basis of CZK 2 144 517), against which the complainant objected again. Following their referral, the court confirmed the order for reimbursement of the costs, finding the unfounded objections. It was based on the amended version of § 5 (1) of Decree No. 330 / 2001 Coll., which was also applicable to the execution proceedings initiated before the date of the amendment (unless they were legally decided on the remuneration of the court executor). It follows that any performance which was performed after the court's decision on the execution regulation had been notified to the debtor was considered to be an recovered performance which was the basis for determining the remuneration for execution. Since the amount recovered was paid to the debtor after the date of service of the order on the execution order, the court found that the specified remuneration of the executor and other amounts requested were in line with the amended Decree No. 330 / 2001 Coll. From the court file, the Constitutional Court also found that the person entitled to enquire at the District Court for Prague 3 informed of the course of payment of the claim, which occurred in such a way that a sum of CZK 770 000 was paid until 21 January 2004, and a penalty of CZK 159 071 was paid on 13 February 2004.

3. In the course of the proceedings on the constitutional complaint, the First Chamber of the Constitutional Court noted that in the case under consideration, the application of Article 5 (1) of Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the final expenses of the manager of the undertaking and on the conditions of liability insurance for damage caused by the executor (hereinafter referred to as "the Order '). This decree was issued by the Ministry of Justice on the basis of an authorisation under § 131 (a) to (c) of the Rules of Enforcement and became effective on 18 September 2001. Paragraph 5 (1) in its original form was worded as follows:" Unless otherwise specified, the basis for determining the remuneration for the execution of the execution order imposing the payment of the sum of the cash amount by the executor of the enforcement.' By Decree No 233 / 2004 Coll. with effect from 30 April 2004, this provision was supplemented by the following: "Unless otherwise stated, the basis for determining the remuneration for the execution of the execution order imposing the payment of the cash amount above the execution order. Any transaction which has been made after the court's decision on the execution order has been served on the debtor shall be deemed to have been recovered in order to fulfil the obligation set out in the order on the execution order, not to fulfil the obligation to pay the execution costs or to pay the authorised costs. '; According to the algorithm included in Section 6 of the Order, the executive's remuneration was calculated on the basis of:

(2) An amount of over CZK 250,000 is not included in the base.

(3) The remuneration referred to in paragraph 1 shall be at least CZK 3,000. "

In the transitional provisions, the following rule was enshrined in Decree No 233 / 2004 Coll.:

"1. The remuneration provided for in this Order shall also be paid to the executor in an execution procedure which was initiated before the date of entry into force of this Order, except in the procedure in which a final decision has already been taken on the remuneration of the court executor. '

4. At the same time, in both versions, the Decree took into account the "voluntary" fulfilment by the debtor in the first stage of execution, i.e. before its implementation. In the original version provided for in Article 11 (1) (a), the executor was remunerated if he forbade execution (pursuant to Article 46 (3) of the Rules of Enforcement), in the case of execution imposing a payment of 50% of the remuneration provided for in Article 6, the amount of the claim to be recovered being considered as the basis of the remuneration. According to the amended version, the executor who has waived the execution fee of 50% of the remuneration provided for in Article 6 shall be entitled to an execution order requiring payment of the cash amount. At the same time, the second paragraph was added as follows:

"(2) The executor shall be remunerated in full if he has waived the execution after:

(a) invite the debtor in writing to fulfil, on a voluntary basis, the obligation imposed on the debtor by the enforcement title; and

(b) the debtor has voluntarily fulfilled what the enforceable title imposes on him and has not paid the costs of the execution until after the reasonable period laid down by the executor in the notice referred to in (a) has expired. "

5. Under Paragraph 46 (3) of the Rules of Enforcement, the executor shall refrain from execution only if the debtor voluntarily fulfils what the Enforcement Order imposes on him and pays the costs of execution; Under Article 87 (1) of the Rules of Procedure, the costs of execution shall be the remuneration of the executor, the reimbursement of the final expenses, the compensation for the loss of time in the execution of the execution, the reimbursement of documents, the remuneration and reimbursement of costs of the manager of the undertaking and, if the executor or manager of the undertaking of the payer's value added tax, the cost of execution shall also be the relevant value added tax.

6. The First Chamber of the Constitutional Court, when assessing the veracity of the constitutional complaint, found that the provisions of Paragraph 5 (1) of the second sentence of Decree No. 330 / 2001 Coll., as amended by Decree No. 233 / 2004 Coll., are contrary to the constitutional rules and therefore, pursuant to Article 78 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, by the Law on the Constitutional Court, by order of 8 February 2006 No. I. ÚS 639 / 04- 12 on the suspension of proceedings and on the application of the Constitutional Court to examine its Constitution.

7. By application lodged by the Constitutional Court on 30 November 2004, the complainant - P. s. b. d. sought the annulment of the order of the District Court of Prague 5 of 13.9.2004 No. Nc 733 / 2003-134 and the order for recovery of the costs of the execution issued by JUDr. J. P., PhD., the court executor, of 29.1.2003 No. EX 1651 / 03- 248, as amended by the amending Decree of 29.3.2004 No. He argued that the contested decisions infringed his constitutionally guaranteed rights enshrined in Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 2 (2) and Article 40 (6) of the Charter and therefore proposed their annulment. the application for annulment of Article II (1) of the Decree justified the prohibited retroactive application. The proceedings shall be conducted under point II.I. ÚS 752 / 04.

8. From the file of the District Court for Prague 5 sp. zn. Nc 733 / 2003 The Constitutional Court found that it had lodged an application against the complainant for an execution order under Act No. 120 / 2001 Coll. to recover a claim of CZK 5 261 822,42 with accessories. By order of 21.5.2003 No. j. Nc 733 / 2003-6, the execution was ordered and the execution was carried out by the court executor of the Executioner's Office Prague 5, JUDr. J. P. It further appeared from the file that the court executor issued an order on 19.8.2003 for the execution of the execution order by the sale of a co-ownership interest in the property and that on 23.11.2003 he delivered a mandatory execution order by ordering the recovery from the account and at the same time the execution order of CZK 41 538 and VAT CZK 48 405). The complainant objected to it, pointing out that it had voluntarily paid the debt. By order of 16.1.2004 No Nc 733 / 2003- 60, the District Court annulled the order for reimbursement of costs for non-examination and incomprehensible reasons. In the meantime, on 19 December 2003, the court executor issued another order to pay the costs of execution No. EX 1651 / 03-230, in which he quantified the additional costs of execution of CZK 2 496 784.50, representing the costs associated with the management of the company, i.e. the costs of the manager and his remuneration. The complainant also objected to that order, in which it expressed its view that the remuneration of the manager of the undertaking was unfounded, since the execution order for the sale of the undertaking was issued in contravention of the execution rules, since the previously chosen method of execution - the sale of the property by the debtor - was sufficient to recover the amount due. By order of 6.2.2004 No Nc 733 / 2003-69, the District Court annulled the order for non-examination. On 29 January 2004 (with the wrong date "29.1.2003," by order of 29 March 2004 No. EX 1651 / 03- 264, corrected on the right date), the court executor issued an order to pay the costs of execution No. J. EX 1651 / 03- 248 of CZK 1 173 775.40 (of which the remuneration of the executor was CZK 926 550, the cost of execution CZK 35 561, VAT 22% of the remuneration CZK 203 841, VAT 22% of the cost of execution CZK 7 823). The complainant objected to the order because it considered the remuneration unfounded and the costs unsubstantiated and unproven. Simultaneously, the Circular Court for Prague 5 by order of 5 March 2004 No NC 733 / 2003-102 of execution stopped as much as CZK 5 261 822,42 with interest on late payment and the costs of the previous proceedings, when it took for proven that the claim was paid voluntarily outside the execution and expired; execution at the cost of execution should continue to be conducted. By subsequent resolution of 13 September 2004 No. j. Nc 733 / 2003-134, the district court amended the order to pay the costs of the execution by determining the amount of the costs by the amount of CZK 1 119 944,60, resulting from the amended version of § 5 paragraph 1 of Decree No. 330 / 2001 Coll., in accordance with it calculated the remuneration of the executor in the amount of CZK 917 830, - CZK with VAT CZK 201 922,60 and the final expenses of CZK 600 with VAT 132 CZK.

9. In the course of the proceedings on a constitutional complaint, the First Chamber of the Constitutional Court noted that it was also in this case the application of Article 5 (1) of the Decree (as well as in the proceedings on a constitutional complaint in the case sp. zn. I. ÚS 639 / 04), including a transitional provision, the annulment of which was proposed by the complainant - P. s. b. d., and for the same reasons, by the Resolution of 2.11.2006 No. I. ÚS 752 / 04-26, suspended and filed a motion by the Constitutional Court to assess the constitutionality of those provisions, because it is convinced that they are in breach of constitutional rules.

10. The two proposals for the annulment of the law concern the rules governing the executive's remuneration, which are therefore the same content as those relating to the case. In view of these findings and in the interest of economy, the Constitutional Court, by order of 14 November 2006 No. Pl. ÚS 8 / 06-18, Pl. ÚS 80 / 06, in accordance with § 63 of the Law on the Constitutional Court, decided by virtue of § 112 (1) of the Civil Code on the connection of these cases to the joint proceedings, with the fact that the proceedings will continue to be conducted under sp. zl. ÚS 8 / 06.

11. During the subsequent phase of the proceedings, the Constitutional Court submitted a proposal in the case under point I. ÚS 639 / 04 on the opinion of the Ministry of Justice and the Ombudsman (which it also asked for a communication on whether it was entering the proceedings). Since the case under point I. ÚS 752 / 04 was a matter of substance, based on the same reasoning, the Constitutional Court did not consider it necessary, for reasons of procedural economics, to send this proposal to the parties concerned.

12. The Ministry of Justice, in a statement signed by the then Deputy Prime Minister of the Czech Republic and the Minister of Justice by JUDr. Pavel Nědek, first expressed doubts as to whether it was appropriate to appreciate the voluntary execution of the debtor in the context of the execution procedure other than that of the applicable legislation; In that context, it stressed that the execution procedure had generally taken place on the grounds that the debtor had not properly and in a timely manner fulfilled his obligation under the obligations under the law of the undertaking and following a judgment by a court or tribunal. In the next part, the contents of § 46 (3), § 87 (1) and § 88 (1) of the Enforcement Order were taken into account and modelled the three situations that may arise in connection with the abandonment of the execution. First, the debtor may voluntarily fulfil what the enforceable title imposes on him, following a written call from the court executor to voluntarily fulfil his obligation within the time limit set by the executor. In such a case, the court executor may combine the execution order with that notice and shall be remunerated (if the execution is subject to payment of a cash sum) of 50%. In such a case, the court executor may deduct the amount of remuneration from the assumption that the debtor voluntarily fulfils his obligation at his request within the prescribed period. Another option is voluntary fulfilment of the obligation without prior written appeal from the court executor; in this case, the executor may issue an order for reimbursement of the costs of the execution and, after payment of those costs (the remuneration is again 50%) refrain from execution. Finally, if the situation referred to in Article 11 (2) of the Decree is brought to light, that is to say that the debtor will not fulfil the obligation voluntarily until after the expiry of the time limit set out in the written notice, the court executor shall be remunerated in full, which the Ministry considers appropriate.

13. On the objection to the hidden increase in the basis for calculating the remuneration carried out by the Order, it stated that it should be based on the authorisation to issue the Order contained in § 131 (a) of the Order and expressed the view that, in view of that fact and taking into account Article 4 (1), The Charter does not contradict either the constitutional order or the law for which it was issued.

The relevant wording of § 131 (a) is as follows:

"The Ministry is empowered to determine by decree

(a) the amount and method of determining the remuneration of the executor, the final expenses, the payment for service of documents and the compensation for the loss of time, including the appropriate amount of the advance; ';

14. The Ombudsman stated that, in accordance with Paragraph 69 (2) of the Law on the Constitutional Court, he was entering the proceedings. On his own application, he stated that he was unable to express his consent to the opinion of the First Chamber of the Constitutional Court on the annulment of the second sentence of § 5 (1) of Decree No. 330 / 2001 Coll., considers his argument convincing and exhaustive and agrees with the motion for annulment.

15. In the course of the proceedings on the motion of the First Chamber of the Constitutional Court, the Ministry of Justice has made further amendments to the incriminated provision, with effect from 1.8.2006 (see Decree No. 291 / 2006 Coll., amending Decree No. 330 / 2001 Coll., on the remuneration and compensation of the court executor, on the remuneration and reimbursement of the final expenses of the manager and on the conditions of liability insurance for damage caused by the executor, as amended by Decree No. 233 / 2004 Coll.). From that date, Paragraph 5 (1) reads: "Unless otherwise specified, the basis for determining the remuneration for the execution of the execution order imposing the payment of the sum of the cash amount of the sums recovered shall be the executor. Any transaction which has been made after the court has given a judgment pursuant to Paragraph 44 (2) of the Act shall be deemed to have been recovered. '. It also included the following rule in the transitional provisions:

"1. Remuneration provided for by Decree No. 330 / 2001 Coll., as amended by Decree No. 330 / 2004 Coll. (Note to be correct, No. 233 / 2004 Coll. ') and this Order belongs to the executor also in the execution procedure, which was initiated before the date of entry into force of the Decree, except for the procedure in which the remuneration of the court executor has already been decided.'

Following this amendment, the Executive Chamber of the Constitutional Court initiated the termination of proceedings within the meaning of Paragraph 67 (1) of the Law on the Constitutional Court.

16. In this context, the Constitutional Court dealt with the assessment of whether there was no reason to terminate the procedure under Paragraph 67 (1) of the Constitutional Court Act. It is true that the provision of Paragraph 5 (1) second sentence has been formally abolished, but it has been replaced by a provision which makes use of completely identical constructions, the amendment only consists of determining the beginning of the period from which the performance is considered to have been recovered. In its essence, the new determination of the beginning of this period is even more in favour of the executor. The First Chamber of the Constitutional Court therefore maintained its position that the provisions of § 5 (1) of the Second Order. No 330 / 2001 Coll., as amended, is contrary to constitutional regulations and adds that the two transitional provisions also contravene constitutional principles.

17. Overview of relevant provisions of the enforcement rules

18. The Constitutional Court is required to assess, in accordance with the provisions of Paragraph 68 (2) of the Law on the Constitutional Court, whether the contested legislation has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.

19. The powers of ministries to legislate for the implementation of the Act are based on Article 79 (3) of the Constitution, provided that the legal authority is expressly authorised. The Constitutional Court has already stated in its findings [e.g. sp. zn. The implementing act must first be issued by an authorised body. The State body which is entitled to enact a statutory law must act on the basis of the law and within its limits (secundum et intra legem) and not outside the law (praeter legem). Simply put, if X is to be the law, it is for this state body to provide that X1, X2, X3 is to be the law, and not that Y is to be the law. the State authority cannot establish primary rights and obligations. From a theoretical point of view, the statutory (implementing) legislation is further required to be general and therefore to affect an indefinite group of addressees, since it empowers the Constitution to legislate, not to issue an individual administrative act.

20. In the present case, Article 131 (a) of the Rules of Enforcement, according to which the Ministry of Justice is empowered to determine by decree the amount and method of determining the remuneration of the executor, the final expenses, the compensation for receipt of documents and the compensation for the loss of time, including the appropriate amount of the advance.

21. Decree No. 330 / 2001 Coll. was issued by the Ministry of Justice on 5. 9. 2001, published in No. 128 / 2001 Collections of Acts on 18. 9. 2001 and, according to its § 28, became effective on the date of publication. The amendment to the Decree carried out by Decree No 233 / 2004 was issued by the Ministry of Justice on 20 April 2004, published in volume 77 / 2004 by the Collection of Laws on 30 April 2004 and, according to Article III thereof, took effect on the date of its publication. Decree No. 291 / 2006 Coll., amending Decree No. 330 / 2001 Coll., on the Remuneration and Reimbursement of the Executioner, on the Remuneration and Reimbursement of Completed Expenses of the Company Manager and on the Conditions of Liability Insurance for Damage Caused by the Executioner, as amended by Decree No. 233 / 2004 Coll., was issued by the Ministry of Justice on 2 June 2006, published in amount 92 / 2006 of the Collection of Laws on 19 June 2006 and, pursuant to Article III thereof, its entry into force was fixed on 1 August 2006.

22. The Constitutional Court notes that the contested provisions have been issued by the Ministry of Justice as a law expressly and specifically by a competent State authority and its content concerning the determination of the amount of the Executive Director's remuneration has not been removed from the limits laid down by the provisions of Article 131 (a) of the Rules of Procedure. In view of the above, the Constitutional Court concludes that the contested order has been adopted and issued within the limits of the constitutional competence laid down. It also did not find that it was not accepted in a constitutional manner.

23. After considering the arguments and opinions set out above, and in particular the opinions of the Ministry of Justice formulated in the final proposal, the Constitutional Court concluded that the provisions of Paragraph 5 (1) of the second sentence of Decree No 330 / 2001 Coll. and the transitional provisions on amendments were necessary. It followed the following considerations.

24. The Constitutional Court considered (also in the sense of the first objection raised by the Ministry of Justice) whether there was no reason to terminate the procedure under Paragraph 67 (1) of the Law on the Constitutional Court. It is true that the provision of Paragraph 5 (1) (a) of the second sentence has been formally abolished, but it has been replaced by a provision using completely identical structures. In this context, the Constitutional Court points to its caselaw, which it responded to a similar situation (the finding in the case sp. zn.

25. If the Ministry of Justice has in effect proposed the rejection of the proposal by the First Chamber for the loss of active legitimacy by the amendment of the contested provision to the link of the subject matter of constitutional complaints with the wording of § 5 (1) of the second sentence of Decree No. 330 / 2001 Coll., the Constitutional Court does not share this objection, since the active legitimacy of the appellant is examined at the beginning of the proceedings.

26. On the substantive objections of the Ministry of Justice concentrated on highlighting the status of the compulsory (educational activity and discount are not an individual right, it is only an suitability, not a constitutional right) and the relationship between executors (non-linear link between remuneration and work, impossibility of quantification) The Constitutional Court adds: The Constitution is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen. One of the fundamental pillars of the rule of law is legal certainty and the content of normative acts, including implementing provisions, must be assessed under that perspective. Unclear and vague structures in legislation also constitute a breach of the right to a fair trial protected by Article 36 (1) of the Charter. The application of legislation until the past or their influence on past legal facts must also be assessed at the point of view of the rule of law, and any retroactivity in this regard may be contrary to Article 1 (1) of the Constitution.

27. In its caselaw, the Constitutional Court repeatedly and consistently recalls the link between the principle of predictability of the consequences of legislation and the principles of the rule of law. The predictability of legislation must undoubtedly also be assessed from a dynamic point of view, i.e. the legislator must take into account the existing legal situation, including the development of legal relations, and must implement the changes sensitively and only to the extent necessary to achieve the regulatory objective. It is necessary to insist on such behaviour by the legislator, as this guarantees the stability of the sphere of free conduct and also the legal certainty of the parties to the legal relationship (see, in detail, the finding in point Pl. ÚS 38 / 04 - see below). There is no doubt that these requirements will also apply in the sphere of derived standardisation, so that they can be fulfilled by all legal entities involved.

28. According to the settled case law of the Constitutional Court, a solution to the conflict of fundamental rights, or a constitutional order of protected public goods, provides the principle of proportionality. This principle is reflected both in the constitutional complaints procedure and in the procedure as in the present case, namely in the abstract control of standards. In the cited finding of 20.6.2006 sp. zn. Pl. ÚS 38 / 04 (published under No. 409 / 2006 Coll.) or in the found of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 (Reports of decisions, Volume 27, Found No. 105; published under No. 405 / 2002 Coll.) The Constitutional Court noted that in cases of conflicts of fundamental rights or freedoms with public interest, or other fundamental rights or freedoms:... "the purpose (objective) of such intervention must be assessed in relation to the resources used, the criterion for this assessment being the principle of proportionality (proportionality in the wider sense), which may also be called a ban on excessive interference in rights and freedoms. This general principle includes three criteria for assessing the admissibility of intervention. The first is the principle of eligibility for the purpose (or suitability), according to which the measure in question must at all be capable of achieving the intended objective of protecting another fundamental right or public good. It is also the principle of necessity, according to which the use of only the most gentle - in relation to the fundamental rights and freedoms concerned - is permitted by several possible means. The third principle is the principle of proportionality (in the narrowest sense), according to which the damage to the fundamental right must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms must not, if there is a conflict of fundamental rights or freedoms with the public interest, exceed, by its negative consequences, the positives which constitute a public interest in those measures." The obligation to respect the principle of proportionality does not only apply to public authorities in their decision-making activities, but also to legislators, in the wider sense of the legislator, which the Ministry of Justice undoubtedly is in terms of substatutory legislation.

29. The Constitutional Court, without denying the right of the executors to a fair remuneration for the execution of the execution activity, considers that the amount paid by the debtor without the direct involvement of the executor in the execution of the execution as an unjustified advantage to those executors who actually carry out the execution (since such differentiation is not reasonably justified) is included in the basic remuneration of the executor. Moreover, in the adopted structure, the Constitutional Court lacks both the "educational" element, when de jure is not given the opportunity to "appreciate" that the debtor fulfils his own obligation (without direct execution), even at the last possible moment. While the provisions of the Decree indicate that in such a case the executor is remunerated at 50%, only if the executor has waived the execution, and the execution order allows him to do so only if the costs of the execution, including the remuneration of the executor, have been paid. It follows that, if the debtor does not pay the executive's remuneration in full, the verbatim text of the law states that the execution cannot be waived, even if the recovery claim has been paid, and therefore the executor has the right to full remuneration (it is a circle movement). The Constitutional Court considers that the design in question is contradictory to Article 1 (1) of the Constitution, since the creation of an impossible condition for the application of a reduced remuneration rate is contrary to the principles of the rule of law (see the finding in the case sp. zn. In its final conclusions, such legislation also constitutes an intervention in the fundamental right of protection of property enshrined in Article 11 (1) of the Charter (see also one of the fundamental principles of execution - the principle of statutory protection of the debtor, the purpose of which is that the execution can serve only to satisfy the right of the creditor and to compensate for the costs of the execution proceedings, including the adequate remuneration of the executor. However, it must not cause disproportionate damage to the debtor because it does not properly take into account a certain degree of "voluntary" in the fulfilment of the enforcement obligation, even after the execution regulation, but still before its enforcement. The treatment under consideration denies the preventive function of execution as a means of non-material liquidation of the compulsory entity (see also the purpose of insolvency proceedings). Therefore, a reduced remuneration can be considered equivalent to the efforts made by the executor, which is also in line with the principle of proportionality, measuring the proportionality of the intervention in the property of the debtor in order to protect the property of the creditor (recovery of his claim). The Constitutional Court concludes that the constitutional conformity of the executive remuneration arrangements should not be based on the direct dependence of the remuneration on the amount of the benefits recovered, but rather reflect the complexity, responsibility and strain of the execution activity by type and method of execution. Pending the adoption of such legislation, it will be up to the general courts to interpret, when deciding on the executive's remuneration, "the amount of the executor of the recovered performance 'in accordance with the principles outlined.

30. The conviction of the Ministry of Justice (see paragraph 12) that the executor can calculate with the assumption that the obligation will be fulfilled and charge reduced remuneration is based on the "willingness" of the executor and does not correspond to the legal text (nor the procedure of the executors in practice). After all, Article 46 (3) of the first enforcement order allows the executor to refrain from execution only if the debtor voluntarily fulfils what the enforceable title imposes on him and pays the costs of execution (including the remuneration of the executor), and the reduced remuneration is due to the executor only if he has waived execution (§ 11 (1) of the Decree). It is so obvious that the executor cannot, or may not, waive the execution if the remuneration is not paid and the remuneration cannot be paid voluntarily until the payment of the remuneration is made, because it is not known above.

31. In this context, the Constitutional Court notes that the current adjustment to the amount of the executors' remuneration cannot be justified by reference to the fact that the executor cannot refuse to execute the execution and that the reimbursement of the costs may be granted to them against the debtor even if the execution is suspended due to a lack of property on the part of the debtor [see the opinion of the Constitutional Court sp. zl. ÚS - st. 23 / 06 (www.kegitura.cz)]. Compensation in this sense is to be sought for the "disadvantaged 'status of the executor in the benefits directly linked to his profession, for example in his almost exclusive position in the exercise of enforceable degrees, in which only judicial executors may partially compete. It cannot be accepted that the remuneration awarded to one debtor could be significantly increased only on the grounds that, in the case of other obliged entities with which the first group of obliged persons had no functional ties (therefore, their debts and impropriety could not be held liable), the execution had to be stopped because of the lack of assets. Therefore, the Constitutional Court abolishes the second sentence of § 5 (1) of Decree No. 330 / 2001 Coll., as amended (operative part I).

32. The principle of legal certainty also infringes the transitional provisions which the unconstitutional principle of the creation of the basic remuneration of the executor, without taking any account of the state of the enforcement proceedings, applies to proceedings initiated before the amendment takes effect. It is a notoriety that legal science recognises the so-called true retroactivity, which includes cases where the legal rule also regulates the creation of a legal relationship and claims arising from it before it is effective, and the retroactivity of the incorrect fact that the legal relationships that arose under the law of the old are managed by that law until the new law is effective, but then governed by that new law. The emergence of legal relations existing before the entry into force of the new legislation, legal claims arising from those legal acts, as well, are governed by the repealed legal standard. In the two cases under consideration, the recovery claim was still satisfied for the effectiveness of the previous adjustment; the court executors also charged the execution costs (including remuneration) at that time, but their orders were cancelled. However, the new orders have already been assessed from the point of view of the amended regulation, so the objections raised in the light of the previous regulation were found unfounded by the courts. Such a structure has certainly shaken the rule of law, since the remuneration was governed by effective legislation at a time when the executor no longer did any of the legal acts aimed at satisfying the claim. For these reasons, the Constitutional Court repeals the transitional provisions (operative part II and III).

33. Within the meaning of those rules, the Constitutional Court calls on the Ministry of Justice, within the framework of the legal authorisation to issue an implementing regulation, to respect, in determining the level of remuneration, the fundamental principles of justice and the rule of law, including the principle of proportionality as a modern constitutional rule [which, according to constant case law, the Constitutional Court also applies - cf. An overview of the development of the Ministry's normmaking in determining the level of fees of lawyers and notaries can also be used to inspire it.

34. The legal certainty is not contributed by the disunited judicial practice in the so-called abandonment of execution (§ 46 paragraph 3 of the first Act No. 120 / 12001 Coll.). The determination of this provision indicates that it is an informal act of the executor, which cannot be considered admissible. The moment of termination of the execution procedure should be clearly determined (also in relation to third parties, e.g. for the deletion of the notes from the property register). While the court, by order of 5 March 2004 No Nc 733 / 2003- 102, has suspended the execution of the proceedings before the District Court of Prague 5, no similar action has been taken. The Constitutional Court considers it appropriate that, in enforcement proceedings, the General Courts should proceed consistently in accordance with § 268 (1) (g) of the Civil Code and stop the proceedings even if the recovery of the claim is terminated by fulfilling the procedure.

35. For these reasons, the plenary of the Constitutional Court decided, on the basis of Paragraph 70 (1) of the Law on the Constitutional Court, to repeal the provisions of Section 5 (1) of the Second Decree No. 330 / 2001 Coll., as amended, of Article II (1) of Decree No. 233 / 2004 Coll. and of Article II (1) of Decree No. 291 / 2006 Coll., on the date of the publication of the decision in the Collection of Laws.

In accordance with Section 14 of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Vladimir Krok took a different position on the decision of the plenary.