As is already the case in our legal environment with the new legal regulation of traditions, even the adoption of Act No. 292/2013 Coll., on special court proceedings, as amended (hereinafter referred to as ZŘS), was not without interpretive ambiguities, to which it does not provide an answer explanatory report or professional literature, and in the absence of any case law in the first weeks and months after the new legal regulation came into effect, there was usually no choice but to rely on one of the possible interpretations and test it in practice. However, even the removal of ambiguities by the decision of higher courts, or even in the form of a unifying opinion of the collegium of the Supreme Court, may not mean the end of all vicissitudes and uncertainties regarding interpretation, if the courts do not respect (or know) this opinion. The following events are illustrative examples of this.
In our case, handled at the turn of 2014 and 2015, i.e. about a year after the entry into force of the new legislation, it was a seemingly simple matter: the appointment of an expert for the valuation of the assets of a defunct company in the process of national merger by merger. According to the provisions of Section 3 of the ZŘS, in "status matters of legal entities, including their cancellation and liquidation, appointment and dismissal of members of their bodies or liquidators, conversions and issues of the status of public benefit", the regional courts have substantive jurisdiction. Given that even the previous legislation entrusted the appointment of an expert for the purposes of transformation to the regional court, the answer to the question of where to submit a proposal for the appointment of an expert seemed clear. However, the locally competent Municipal Court in Prague had doubts about its jurisdiction. He pointed out that Section 85 of the ZŘS defines the procedure for the appointment of an expert pursuant to letter b) of the cited provision as a special type of proceeding standing alongside proceedings on status issues of legal entities (including the aforementioned conversions) pursuant to Section 85 letter a) ZŘS Proceedings according to § 85 letter b) According to the provisions of § 3 of the ZŘS, the ZŘS is not entrusted to the regional court, and according to the opinion of the Municipal Court in Prague, the district court was materially competent. Therefore, in accordance with § 104a of Act No. 99/1963 Coll., Code of Civil Procedure, the case was submitted to the High Court in Prague, which agreed with the arguments of the Municipal Court in Prague and in January 2015 stated the jurisdiction of the district court to appoint an expert for transformations. The expert was subsequently appointed by the locally competent district court and the conversion was duly entered in the commercial register. In this context, it is necessary to appreciate the speed and flexibility of the High Court in Prague when deciding on material jurisdiction, because in the time-stressed process of conversion, waiting for a decision in the order of weeks or months could cause significant complications. Precisely because of the time pressure to complete the conversion within the deadline, we did not engage in a dispute with the opinion of the Municipal Court in Prague, even though in our opinion the ZŘS at least accepts both possible interpretations of the issue of material jurisdiction.
In the spring of 2016, informed by this development and with the legal regulation unchanged, we submitted a proposal for the appointment of an expert for property valuation to the locally competent district court as part of the preparation of the next transformation. He appointed this expert without further ado. What was our surprise when, a month later, another district court responded to our similar proposal by warning that it was not considered materially competent and that the proposal should have been submitted to the regional court. The District Court in Chrudim, and thanks be to him for that, drew our attention to the Opinion of the Civil and Commercial College of the Supreme Court dated 8/4/2015, no. stamp Cpjn 201/2014. The Supreme Court found that it is necessary to unify the practice of the courts when appointing an expert for the valuation of assets during the conversion, as various courts were apparently inclined to both interpretations of the above-mentioned ZPR. The Supreme Court noted, it should be added, that in accordance with our original opinion, that "the decision on the appointment of an expert is issued as part of the process of transformation of a business corporation and is regulated by Act No. 125/2008 Coll. (§ 28 to § 32a). In other words, although it is a procedure for the appointment of an expert, it is also a procedure in matters of transformation of commercial companies and cooperatives, which according to § 3 paragraph 2 letter a) ZŘS falls under the substantive jurisdiction of the regional courts. When assessing substantive jurisdiction, it is necessary to take into account the general principle according to which the division of cases between district and regional courts should not lead to the so-called splitting of substantive law agendas, i.e. to a situation where both district and regional courts decide in the first instance within one agenda. "[1]
It is thus obvious that the first district court decided on a matter in which it did not have substantive jurisdiction. If we were to submit his decision to a registry court or a notary who is familiar with the unifying opinion cited above when registering the conversion, it could greatly complicate the registration of the conversion, as it is a question of whether the decision of a non-jurisdictional court would be accepted in the registry proceedings or not. However, it was too late to address the material lack of jurisdiction of the court to appoint an expert for the valuation of the first company participating in the merger, as the district court's resolution became legally binding (also the time limits for any extraordinary remedies, if the conditions for their use had been given at all, have already expired) and is so binding for us and for the registry court.
Jurisprudence and opinions of higher courts are not formally binding, and disregarding them will not and cannot invalidate a decision that does not correspond to their conclusions. However, this does not mean that ignoring established jurisprudence or decisions and opinions of higher courts would have no consequences. The opinions of the Supreme Court are issued for the purpose of ensuring the unity of the jurisprudence, and the courts should not deviate from them in their decisions and thus create another split in the jurisprudence. Courts can disregard the conclusions of the Supreme Court, but not outside the scope of justice, and the court must properly justify such a decision. The above-mentioned requirement to respect the jurisprudence of higher courts and the opinions of the Supreme Courts is, as is well known, important from the point of view of the predictability of court decisions and thus the level of confidence of the citizen in the law. These are elements of the principle of legal certainty, which is one of the building blocks of the rule of law.
The above-mentioned situation, when the district court, unaware of the opinion of the Supreme Court, decided to appoint an expert despite its lack of substantive jurisdiction (according to that opinion), and subsequently another district court does not find its substantive jurisdiction in the same matter, certainly does not inspire confidence in the law, regardless of complications ( temporal and procedural, which the referral of the case for a decision on substantive jurisdiction or the withdrawal of the proposal and its resubmission causes). On the contrary, the confusion that this decision has caused and that it could cause in the proceedings before the registry court undermines the principle of legal certainty and predictability of court decisions. The lack of knowledge of the subject unifying opinion of the Supreme Court even a year after its issuance (which, unfortunately, also affected us at a certain stage and for which we understandably blame ourselves - considering the procedural complications it caused), is, however, alarming in the case of the court. Who else should be familiar with all relevant jurisprudence in detail than the court, for whom the procedural procedure in question is a daily bread.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] Opinion of the Civil Law and Commercial College of the Supreme Court of 8 April 4, no. stamp Cpjn 2015/201; you can find the entire opinion here;
