Abrakadabra, iudicium duplex! Aneb o náhradě nákladů řízení o zrušení a vypořádání spoluvlastnictví
Abracadabra, iudicium duplex!  On the Costs of the Proceedings for the Dissolution and Division of Co-ownership

Summary/Abstract: In its opinion Pl. 59/23 the Constitutional Court dealt with the decision on the compensation of the costs of the proceedings on the dissolution and settlement of co-ownership. It concluded that the principle of success in the case (so called “loser pays” rule) applies only in the event of dismissal of the action. Otherwise, the procedural success of the parties is to be considered equal and no costs are to be awarded to any of them, pursuant to Section 142(2) of the Civil Procedure Code. An exceptional award of costs could be justified by the particular circumstances of the case; costs could then be awarded under Article 142(3) of the Civil Procedure Code. It is also clear from the opinion that this conclusion is also to apply to proceedings for the separation of the community of property and to proceedings for the division of the matrimonial property.The conclusions reached and the arguments leading up to them – the central one of which, repeated many times in the opinion, points out that the proceedings are in the nature of iudicii duplicis – are grossly incorrect or even confusing and are based on a misunderstanding of certain concepts or institutes of procedural law or of the relationship between procedural and substantive law. We do not consider it unnecessary to point out these shortcomings, even though the Constitutional Court has already expressed its opinion. We hope that the Constitutional Court, in the interest of the persuasiveness of its rulings, will either acknowledge the validity of our arguments and change its opinion, or correctly refute the arguments we have presented.

• Details
• Contents