Trading company Kentino s.r.o. (PC PRAGUE)
with registered office: Čestmírova 25. 14 000 Prague 4. Identification number: 05066743 registered in the commercial register maintained by the Municipal Court in Prague, section C, insert 311185
for the sale of goods through an online store located at www.pcpraha.com
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- INTRODUCTORY PROVISIONS
1.1. These terms and conditions (hereinafter referred to as "terms and conditions") of the trading company Kentino s.r.o., with registered office at Čestmirova 25, 140 00 Prague, identification number: 05066743, registered in the commercial register maintained by the Municipal Court in Prague, section C, entry 311185 (hereinafter referred to as "the seller ") regulate in accordance with the provisions of § 1751 paragraph 1 of Act No. 89/2012 Coll., the Civil Code, as amended (hereinafter referred to as the "Civil Code"), the mutual rights and obligations of the contracting parties arising in connection with or on the basis of a purchase contract (hereinafter referred to as the "purchase agreement") concluded between the seller and another natural or legal person (hereinafter referred to as the "buyer") via the seller's online store. The online store is operated by the seller on a website located at www.pcpraha.cz (hereinafter referred to as the "website"), through the website interface (hereinafter referred to as the "store web interface").
1.2. The terms and conditions do not apply to cases where the person who intends to purchase goods from the seller is a legal entity or a person who, when ordering goods, acts as part of his business activity or as part of his independent profession.
1.3. Provisions deviating from the terms and conditions can be negotiated in the purchase contract. Deviating provisions in the purchase contract take precedence over the provisions of the terms and conditions.
1.4. The terms and conditions are an integral part of the purchase contract. The purchase contract and terms and conditions are drawn up in the Czech language. The purchase contract can be concluded in the Czech language.
1.5. The seller may change or add the wording of the terms and conditions. This provision is without prejudice to the rights and obligations arising during the period of validity of the previous version of the Terms and Conditions.
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- USER ACCOUNT
2.1. Based on the buyer's registration on the website, the buyer can access its user interface. The buyer can order goods from his user interface (hereinafter referred to as "user account"). If the web interface of the store allows it, the buyer can also order goods without registration directly from the web interface of the store.
2.2. When registering on the website and when ordering goods, the buyer is obliged to enter all data correctly and truthfully. The buyer is obliged to update the data in the user account in case of any change. The data provided by the buyer in the user account and when ordering goods are considered correct by the seller.
2.3. Access to the user account is secured by a username and password. The buyer is obliged to maintain confidentiality regarding the information necessary to access his user account.
2.4. The buyer is not authorized to allow the use of the user account by third parties.
2.5. The seller can cancel the user account, especially if the buyer does not use his user account for more than 12 months, or if the buyer violates his obligations under the purchase contract (including the terms and conditions).
2.6. The buyer acknowledges that the user account may not be available continuously, especially with regard to the necessary maintenance of the seller's hardware and software equipment, or necessary maintenance of hardware and software equipment of third parties.
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- CONCLUSION OF THE PURCHASE CONTRACT
3.1. All the presentation of goods placed in the web interface of the store is of an informative nature and the seller is not obliged to conclude a purchase contract regarding these goods. The provisions of Section 1732, paragraph 2 of the Civil Code shall not apply.
3.2. The web interface of the store contains information about the goods, including the prices of the individual goods and the costs for returning the goods, if these goods cannot by their nature be returned by the usual postal route. The prices of goods are listed including value added tax and all related fees. The prices of the goods remain valid for as long as they are displayed in the web interface of the store. This provision does not limit the seller's ability to conclude a purchase contract under individually agreed conditions.
3.3. The web interface of the store also contains information about the costs associated with the packaging and delivery of the goods. The information on the costs associated with the packaging and delivery of the goods listed in the web interface of the store is valid only in cases where the goods are delivered within the territory of the Czech Republic.
3.4. To order goods, the buyer fills out the order form in the web interface of the store. The order form mainly contains information about:
3.4.1. ordered goods (the ordered goods are "put" by the buyer into the electronic shopping cart of the store's web interface),
3.4.2. method of payment of the purchase price of the goods, information on the required method of delivery of the ordered goods and
3.4.3. information about the costs associated with the delivery of the goods (hereinafter collectively referred to as the "order").
3.5. Before sending the order to the seller, the buyer is allowed to check and change the data entered by the buyer in the order, also taking into account the buyer's ability to detect and correct errors that occurred when entering data into the order. The buyer sends the order to the seller by clicking the "Complete order" button. The data listed in the order they are deemed correct by the seller. Immediately after receiving the order, the seller will confirm this receipt to the buyer by e-mail, to the buyer's e-mail address specified in the user account or in the order (hereinafter referred to as the "buyer's e-mail address").
3.6. The seller is always entitled, depending on the nature of the order (quantity of goods, amount of the purchase price, estimated shipping costs), to ask the buyer for additional confirmation of the order (for example, in writing or by telephone).
3.7. The contractual relationship between the seller and the buyer is established by the delivery of the acceptance of the order (acceptance), which is sent by the seller to the buyer by e-mail, to the e-mail address of the buyer.
3.8. The buyer agrees to use remote means of communication when concluding the purchase contract. The costs incurred by the buyer when using means of communication at a distance in connection with the conclusion of the purchase contract (costs of internet connection, costs of telephone calls) are covered by the buyer himself, and these costs do not differ from the basic rate.
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- PRICE OF GOODS AND PAYMENT CONDITIONS
4.1. The price of the goods and any costs associated with the delivery of the goods according to the purchase contract can be paid by the buyer to the seller in the following ways:
v hotovosti v provozovně prodávajícího na adrese Opletalova, č.p. 20, PSČ 11000, Město Praha;
v hotovosti na dobírku v místě určeném kupujícím v objednávce;
bezhotovostně převodem na účet prodávajícího č. 2300998633/2010
, vedený u společnosti Fio banka (dále jen „účet prodávajícího“);
bezhotovostně platební kartou online prostřednictvím platební brány;
prostřednictvím úvěru poskytnutého třetí osobou - po dohodě.
4.2. Along with the purchase price, the buyer is also obliged to pay the seller the costs associated with the packaging and delivery of the goods in the agreed amount. Unless expressly stated otherwise, the purchase price also includes the costs associated with the delivery of the goods.
4.3. The seller does not require a deposit or other similar payment from the buyer. This does not affect the provisions of Article 4.6 of the Terms and Conditions regarding the obligation to pay the purchase price of the goods in advance.
4.4. In the case of payment in cash or in the case of payment on delivery, the purchase price is payable upon receipt of the goods. In the case of non-cash payment, the purchase price is payable within 14 days of concluding the purchase contract.
4.5. In the case of non-cash payment, the buyer is obliged to pay the purchase price of the goods together with the variable payment symbol. In the case of non-cash payment, the buyer's obligation to pay the purchase price is fulfilled when the relevant amount is credited to the seller's account.
4.6. The seller is entitled, especially in the event that the buyer does not provide additional confirmation of the order (Article 3.6), to demand payment of the full purchase price before sending the goods to the buyer. The provisions of Section 2119 (1) of the Civil Code shall not apply.
4.7. Any discounts on the price of goods provided by the seller to the buyer cannot be combined with each other.
4.8. If it is customary in business dealings or if it is stipulated by generally binding legal regulations, the seller will issue a tax document - an invoice - to the buyer regarding payments made on the basis of the purchase contract. The seller is/is not a value added tax payer. Tax document – the seller issues the invoice to the buyer after payment of the price of the goods and sends it in electronic form to the buyer's e-mail address.
4.9. According to the Sales Registration Act, the seller is obliged to issue a receipt to the buyer. At the same time, he is obliged to register the received sales with the tax administrator online; in the event of a technical failure, then within 48 hours at the latest.
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- WITHDRAWAL FROM THE PURCHASE CONTRACT
5.1. The buyer acknowledges that, according to the provisions of § 1837 of the Civil Code, it is not possible, among other things, to withdraw from a purchase contract for the supply of goods that has been modified according to the wishes of the buyer or for his person, from a purchase contract for the supply of goods that are subject to rapid deterioration, as well as goods, which was irretrievably mixed with other goods after delivery, from the purchase contract for the supply of goods in closed packaging, which the consumer removed from the packaging and for hygienic reasons cannot be returned, and from the purchase contract for the supply of an audio or video recording or a computer program, if he violated their original packaging.
5.2. If it is not a case mentioned in Article 5.1 of the terms and conditions or another case where it is not possible to withdraw from the purchase contract, the buyer has the right to withdraw from the purchase contract in accordance with § 1829, paragraph 1 of the Civil Code, within fourteen (14 ) days from the acceptance of the goods, while in the case that the subject of the purchase contract is several types of goods or the delivery of several parts, this period runs from the day of acceptance of the last delivery of goods. Withdrawal from the purchase contract must be sent to the seller within the period specified in the previous sentence. To withdraw from the purchase contract, the buyer can use the sample form provided by the seller, which forms an appendix to the terms and conditions. Withdrawal from the purchase contract can be sent by the buyer to, among other things, the address of the seller's place of business or the seller's e-mail address [email protected].
5.3. In case of withdrawal from the purchase contract according to Article 5.2 of the terms and conditions, the purchase contract is canceled from the beginning. The goods must be returned by the buyer to the seller within fourteen (14) days of delivery of the withdrawal from the purchase contract to the seller. If the buyer withdraws from the purchase contract, the buyer bears the costs associated with returning the goods to the seller, even if the goods cannot be returned by the usual postal route due to their nature.
5.4. In the event of withdrawal from the purchase contract pursuant to Article 5.2 of the terms and conditions, the seller shall return the funds received from the buyer within fourteen (14) days of withdrawal from the purchase contract by the buyer, in the same manner as the seller received them from the buyer. The seller is also entitled to return the performance provided by the buyer when the goods are returned by the buyer or in another way, if the buyer agrees and no additional costs are incurred by the buyer. If the buyer withdraws from the purchase contract, the seller is not obliged to return the received funds to the buyer before the buyer returns the goods to him or proves that he has sent the goods to the seller.
5.5. The seller is entitled to unilaterally offset the claim for payment of damage caused to the goods against the buyer's claim for a refund of the purchase price.
5.6. In cases where the buyer has the right to withdraw from the purchase contract in accordance with § 1829 paragraph 1 of the Civil Code, the seller is also entitled to withdraw from the purchase contract at any time, up to the time of acceptance of the goods by the buyer. In such a case, the seller will return the purchase price to the buyer without undue delay, without cash to the account designated by the buyer.
5.7. The Civil Code in paragraph 1837 states that the Consumer cannot withdraw from the contract for b) on the supply of goods or services, the price of which depends on fluctuations in the financial market independently of the entrepreneur's will and which may occur during the period for withdrawing from the contract. This especially applies to ASIC miners, as their price is explicitly dependent on the price of the given cryptocurrency that is mined/generated on the exchange at the given moment and on the financial markets. For example, we state that the s19 90TH asic miner cost around 240 CZK when bitcoin was over 000 million crowns. When a bitcoin is below 1 CZK, it costs 500 CZK. This is the same machine, which was not replaced in the given time horizon by a generationally more advanced machine.
5.8. If a gift is provided to the buyer together with the goods, the gift contract between the seller and the buyer is concluded with the severance condition that if the buyer withdraws from the purchase contract, the gift contract regarding such a gift ceases to be effective and the buyer is obliged to return the goods to the seller together with gift given.
5.9. ASIC we deliver miners and heavy equipment under a work contract regime. When do we order them from the manufacturer as custom-made for customers along with testing and setting.
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- TRANSPORT AND DELIVERY OF GOODS
6.1. In the event that the mode of transport is contracted on the basis of a special request of the buyer, the buyer bears the risk and any additional costs associated with this mode of transport.
6.2. If, according to the purchase contract, the seller is obliged to deliver the goods to the place specified by the buyer in the order, the buyer is obliged to take over the goods upon delivery.
6.3. If, for reasons on the part of the buyer, it is necessary to deliver the goods repeatedly or in a different way than was specified in the order, the buyer is obliged to pay the costs associated with repeated delivery of the goods, or costs associated with another delivery method.
6.4. When taking over the goods from the transporter, the buyer is obliged to check the integrity of the packaging of the goods and, in the event of any defects, to notify the transporter immediately. In the event of a violation of the packaging indicating an unauthorized intrusion into the shipment, the buyer does not have to accept the shipment from the carrier. This does not affect the rights of the buyer from liability for product defects and other rights of the buyer resulting from generally binding legal regulations.
6.5. Additional rights and obligations of the parties during the transportation of goods may be regulated by the seller's special delivery conditions, if issued by the seller.
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- RIGHTS FROM DEFECTIVE PERFORMANCE
7.1. The rights and obligations of the contracting parties regarding rights from defective performance are governed by the relevant generally binding legal regulations (in particular the provisions of § 1914 to 1925, § 2099 to 2117 and § 2161 to 2174 of the Civil Code and Act No. 634/1992 Coll., on consumer protection, as amended).
7.2. The seller is responsible to the buyer for the goods to have no defects. In particular, the seller replies to the buyer that at the time the buyer took over the goods:
7.2.1. the goods have the properties that the parties have agreed upon, and in the absence of an agreement, they have the properties that the seller or manufacturer has described or that the buyer expected with regard to the nature of the goods and on the basis of the advertising carried out by them,
7.2.2. the goods are suitable for the purpose that the seller states for their use or for which goods of this type are usually used,
7.2.3. the quality or design of the goods corresponds to the contracted sample or model, if the quality or design was determined according to the contracted sample or model,
7.2.4. is the goods in the corresponding quantity, measure or weight and
7.2.5. the goods comply with the requirements of legal regulations.
7.3. If a defect becomes apparent within six months of receipt, it is considered that the goods were already defective upon receipt.
7.4. The seller has obligations from defective performance at least to the extent that the manufacturer's obligations from defective performance last. The buyer is otherwise entitled to exercise the right from a defect that occurs in the consumer goods within twenty-four months of receipt. If the period during which the goods can be used is indicated on the sold goods, on their packaging, in the instructions attached to the goods or in advertising in accordance with other legal regulations, the provisions on the quality guarantee shall apply. With a quality guarantee, the seller undertakes that the goods will be suitable for use for the usual purpose or that they will retain their usual properties for a certain period of time. If the buyer justifiably accuses the seller of a defect in the goods, the period for exercising rights from defective performance or the warranty period does not run for the period during which the buyer cannot use the defective goods.
7.5. The provisions set out in Article 7.2 of the terms and conditions do not apply to goods sold at a lower price to a defect for which a lower price was agreed, to wear and tear of the goods caused by its usual use, in the case of used goods to a defect corresponding to the degree of use or wear that the goods had at the time of receipt by the buyer, or if it follows from the nature of the goods. The right of defective performance does not belong to the buyer, if the buyer knew before taking over the goods that the goods had a defect, or if the buyer himself caused the defect.
7.6. Rights from liability for product defects apply to the seller. However, if in the confirmation issued to the seller regarding the extent of rights from liability for defects (in the sense of the provisions of § 2166 of the Civil Code) another person designated for repair is mentioned, who is at the seller's place or at a place closer to the buyer, the buyer will exercise the right to repair with that , who is intended to carry out the repair. With the exception of cases where another person is designated to carry out the repair according to the previous sentence, the seller is obliged to accept the complaint in any establishment in which the acceptance of the complaint is possible with regard to the range of products sold or services provided, possibly also at the headquarters or place of business. The seller is obliged to issue a written confirmation to the buyer of when the buyer exercised the right, what the content of the claim is and what method of handling the claim the buyer requires; and further confirmation of the date and method of processing the complaint, including confirmation of the repair and its duration, or written justification for the rejection of the complaint. This obligation also applies to other persons appointed by the seller to carry out repairs.
7.7. The buyer can specifically exercise his rights from liability for product defects in person at Opletalova 20, 11000, Prague, by phone at +420 602338783 or by e-mail at [email protected].
7.8. The buyer shall inform the seller of the right he has chosen upon notification of the defect, or without undue delay after notification of the defect. The choice made cannot be changed by the buyer without the consent of the seller; this does not apply if the buyer requested the repair of a defect that turns out to be irreparable.
7.9. If the goods do not have the characteristics specified in Article 7.2 of the terms and conditions, the buyer can also demand the delivery of new goods without defects, if this is not unreasonable due to the nature of the defect, but if the defect concerns only a part of the goods, the buyer can only demand the replacement of the part; if this is not possible, he can withdraw from the contract. However, if this is disproportionate due to the nature of the defect, especially if the defect can be removed without undue delay, the buyer has the right to remove the defect free of charge. The buyer has the right to deliver new goods or replace a part even in the case of a removable defect, if he cannot use the goods properly due to the repeated occurrence of the defect after repair or due to a larger number of defects. In such a case, the buyer has the right to withdraw from the contract. If the buyer does not withdraw from the contract or if he does not exercise the right to deliver new goods without defects, to replace a part of it or to repair the goods, he can demand a reasonable discount. The buyer has the right to a reasonable discount even if the seller cannot supply him with new goods without defects, replace its part or repair the goods, as well as in the event that the seller does not remedy the situation in a reasonable time or that the remedy would cause significant difficulties for the buyer.
7.10. Additional rights and obligations of the parties related to the seller's liability for defects may be regulated by the seller's complaint procedure.
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- OTHER RIGHTS AND OBLIGATIONS OF THE CONTRACTING PARTIES
8.1. The buyer acquires ownership of the goods by paying the full purchase price of the goods.
8.2. In relation to the buyer, the seller is not bound by any codes of conduct in the sense of the provisions of § 1826 par. e) of the Civil Code.
8.3. The seller handles consumer complaints via an electronic address [email protected]. The Seller shall send information on the settlement of the Buyer's complaint to the Buyer's email address.
8.4. The Czech Trade Inspection Authority, with its registered office at Štěpánská 567/15, 120 00 Prague 2, IČ: 000 20 869, Internet address: https://adr.coi.cz/cs, is responsible for the out-of-court settlement of consumer disputes arising from the purchase contract. The online dispute resolution platform at http://ec.europa.eu/consumers/odr can be used to resolve disputes between the seller and the buyer under the purchase agreement.
8.5. European Consumer Center Czech Republic, with its registered office at Štěpánská 567/15, 120 00 Prague 2, Internet address: http://www.evropskyspotrebitel.cz is a contact point pursuant to Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution and amending Regulation (EC) No 2006/2004 and Directive 2009/22 / EC (Online Consumer Dispute Resolution Regulation).
8.6. The seller is entitled to sell goods on the basis of a trade license. The trade license control is performed by the relevant trade licensing office within its competence. The Office for Personal Data Protection supervises the area of personal data protection. The Czech Trade Inspection Authority, to a limited extent, supervises compliance with Act No. 634/1992 Coll., On Consumer Protection, as amended.
8.7. The buyer hereby assumes the risk of a change in circumstances within the meaning of § 1765 paragraph 2 of the Civil Code.
8.8. As standard, a guarantee is provided for the goods sold in accordance with the Civil Code. This is usually 2 years unless otherwise specified. In addition to this standard legal guarantee arising from the Civil Code, it is possible to purchase an additional commercial guarantee, which has a wider scope and a longer period.
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- PROTECTION OF PERSONAL DATA
9.1. Your obligation to provide information to the buyer in accordance with Article 13 of Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons in connection with the processing of personal data and on the free movement of such data and on the repeal of Directive 95/46/EC (General Data Protection Regulation) ( hereinafter referred to as the "GDPR regulation") related to the processing of the buyer's personal data for the purpose of fulfilling the purchase contract, for the purpose of negotiating the purchase contract and for the purpose of fulfilling the seller's public obligations is fulfilled by the seller by means of a special document.
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- SENDING BUSINESS MESSAGES AND STORING COOKIES
10.1. The buyer agrees, in accordance with the provisions of § 7 paragraph 2 of Act No. 480/2004 Coll., on certain services of the information society and on the amendment of certain laws (the Act on certain services of the information society), as amended, to the sending of business communications by the seller to an electronic address or phone number of the buyer. The seller fulfills its information obligation towards the buyer in accordance with Article 13 of the GDPR regulation related to the processing of the buyer's personal data for the purpose of sending business communications through a special document.
10.2. The buyer agrees to the storage of so-called cookies on his computer. In the event that it is possible to make a purchase on the website and to fulfill the seller's obligations from the purchase contract without so-called cookies being stored on the buyer's computer, the buyer can revoke the consent according to the previous sentence at any time.
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- DELIVERY
11.1. It can be delivered to the buyer's email address.
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- FINAL PROVISIONS
12.1. If the relationship established by the purchase contract contains an international (foreign) element, then the parties agree that the relationship is governed by Czech law. By choosing the law according to the previous sentence, the buyer who is a consumer is not deprived of the protection provided by the provisions of the legal order, from which it is not possible to deviate contractually, and which, in the absence of the choice of law, would otherwise be applied according to the provisions of Article 6, paragraph 1 of the Regulation of the European of the Parliament and the Council (EC) No. 593/2008 of 17 June 2008 on the law governing contractual obligations (Rome I).
12.2. If any provision of the terms and conditions is invalid or ineffective, or becomes so, the invalid provision will be replaced by a provision whose meaning is as close as possible to the invalid provision. The invalidity or ineffectiveness of one provision does not affect the validity of the other provisions.
12.3. The purchase contract, including the terms and conditions, is archived by the seller in electronic form and is not accessible.
12.4. The annex to the terms and conditions consists of a sample form for withdrawing from the purchase contract.
12.5. Contact details of the seller: address for delivery of documents: PcPraha – Kentino sro, Čestmírova 25, Prague 4, 140 00 Prague.
Information on the processing of personal data and GDPR can be found at: Protection of suppliers' personal data.
13. Supplementing the departure conditions so that they meet the requirements of ČOI.
In terms of business conditions, we fully respect the changing Civil Code, but we are forced to repeatedly rewrite its letter here and add the wording of the Regulation of the European Parliament and the Council of the EU No. 524/2013 according to the Czech Commercial Inspection. Furthermore, we are forced to inform you about the change in EC Regulation No. 2006/2004 and Directive 2009/22/EC. Thus, although it is exhaustive in terms of information, in the interest of non-violation of par. 5a paragraph 1 of Act No. 634/1992 Coll. therefore, we inform you about everything that ČOI requires of us in the last inspection..
GENERAL PROVISIONS ON OBLIGATIONS
Formation of obligations and their content
From the obligation, the creditor has the right to certain performance against the debtor as a claim, and the debtor has the obligation to satisfy this right by fulfilling the debt.
The performance that is the subject of the obligation must be of a pecuniary nature and correspond to the interest of the creditor, even if this interest is not only pecuniary.
(1) The obligation arises from a contract, from an illegal act, or from another legal fact that is eligible for it according to the legal order.
(2) Provisions on obligations arising from contracts shall also be applied proportionately to obligations arising on the basis of other legal facts.
Contract
General conditions
(1) With the contract, the parties show their will to establish an obligation between themselves and to follow the content of the contract.
(2) The provisions on contracts shall also apply mutatis mutandis to the expression of will by which one person addresses other persons, unless the nature of the expression of will or the law precludes this.
The contract is concluded as soon as the parties have agreed on its content. Within the limits of the legal order, the parties are left free to negotiate the contract and determine its content.
If the parties consider the contract concluded, even though they did not in fact agree on the requisites that they should have agreed on in the contract, the expression of their will is considered as a concluded contract if, especially taking into account their subsequent behavior, it can reasonably be assumed that the contract would concluded even without stipulating this requirement. However, if one of the parties made it clear during the conclusion of the contract that reaching an agreement on certain details is a prerequisite for concluding the contract, it is considered that the contract has not been concluded; then the agreement on the other requirements of the party is not binding, even if a record has been made of them.
Each of several contracts concluded at the same meeting or included in the same document is considered separately. If it follows from the nature of several contracts or from their purpose known to the parties when concluding the contract that they are dependent on each other, the creation of each of them is a condition for the creation of the other contracts. The termination of the obligation from one of them without satisfaction of the creditor cancels the other dependent contracts, with similar legal effects.
(1) Everyone can negotiate a contract freely and is not responsible for not concluding it, unless he starts negotiating a contract or continues such negotiations without intending to conclude a contract.
(2) When negotiating the conclusion of the contract, the contracting parties shall communicate to each other all the factual and legal circumstances of which they know or must know, so that each of the parties can be convinced of the possibility of concluding a valid contract and that each of the parties is clear of its interest in concluding the contract.
(1) If the parties have reached such a stage in the negotiation of the contract that the conclusion of the contract appears to be highly probable, the party acting dishonestly is the party who, despite the other party's reasonable expectation of the conclusion of the contract, terminates the negotiations on the conclusion of the contract without having a just reason for doing so.
(2) The party that acts dishonestly shall compensate the other party for damages, but at most to the extent that corresponds to the loss from the unconcluded contract in similar cases.
(1) If the parties provide each other with information and communications during the negotiation of the contract, each of the parties has the right to keep records of them, even if the contract is not concluded.
(2) If a party obtains confidential information or communications about the other party during contract negotiations, it shall ensure that they are not misused or that they are not disclosed without a lawful reason. If he violates this duty and enriches himself by it, he gives to the other party what he enriched himself with.
A conclusion of the contract
Proposal for concluding a contract
It must be clear from the proposal to conclude a contract (hereinafter referred to as the "offer") that the person making it intends to conclude a certain contract with the person to whom the offer is made.
(1) A legal action leading to the conclusion of a contract is an offer if it contains the essential elements of the contract so that the contract can be concluded by its simple and unconditional acceptance, and if it implies the will of the proposer to be bound by the contract if the offer is accepted.
(2) It is considered that a proposal to deliver goods or provide a service at a specified price made in the course of business activity by advertising, in a catalog or by displaying goods is an offer subject to the exhaustion of stocks or the loss of the entrepreneur's ability to perform.
An expression of will that does not comply with § 1732 is not an offer and therefore cannot be accepted. If the expression of will contains promises of performance for a certain performance or result, it is a public promise, otherwise it is simply an invitation to submit an offer. The same applies to speech that is directed towards an indefinite circle of persons or that has the nature of advertising, unless something else clearly follows from it.
An offer made orally must be accepted without delay, unless otherwise appears from its content or the circumstances under which it was made. This also applies if the person present was presented with an offer made in writing.
An offer made in writing to an absent person must be accepted within the period specified in the offer. If no deadline is specified, the offer may be accepted at a time reasonable to the nature of the proposed contract and the speed of the means used by the offeror to send the offer.
The offer is irrevocable if it is expressly stated in it, or if the parties so agree. The offer is also irrevocable, if it results from the negotiations of the parties to conclude the contract, from their previous business dealings, or from customs.
Cancellation of offer
Although an offer is irrevocable, it can be revoked if notice of revocation is given to the other party before or at least simultaneously with the delivery of the offer.
Withdrawal of offer
(1) Even if an offer is revocable, it cannot be withdrawn within the period specified for its acceptance, unless so provided in the offer. A revocable offer can only be revoked if the revocation occurs before the other party sends the acceptance of the offer.
(2) The offer cannot be revoked if irrevocability is expressed in it.
(1) If an offer is rejected, it will cease to be effective as a rejection.
(2) If one of the parties dies, or if they lose their legal capacity to conclude a contract, the offer will expire, if this is clear from the offer itself or from the nature and purpose of the proposed contract.
Acceptance of offer
(1) The person to whom the offer is addressed will accept the offer if he agrees to it in time towards the proposer. Silence or inaction in itself is not acceptance.
(2) An expression of will that contains additions, reservations, restrictions or other changes is a rejection of the offer and is considered a new offer. However, accepting an offer is a response that defines the content of the proposed contract in other words.
(3) A response with an amendment or variation that does not materially change the terms of the offer is an acceptance of the offer, unless the offeror without undue delay rejects such acceptance. The proposer can exclude the acceptance of an offer with an amendment or deviation in advance already in the offer or in another way that does not raise doubts.
In the case of an offer addressed to several persons, the contract is concluded if all these persons accept the offer, if its content indicates the intention of the proposer that all persons to whom the offer is addressed become parties to the contract, or if such an intention can reasonably be assumed from the circumstances, under to whom the offer was made. The same applies mutatis mutandis if the intention of the proposer is obvious for a certain number of these persons to become a party to the contract.
Acceptance of an offer can be canceled if cancellation is made by the proposer no later than acceptance.
(1) Even a late acceptance of an offer has the effects of a timely acceptance, if the proposer, without undue delay, at least verbally informs the person who made the offer that he considers the acceptance to be timely, or begins to behave in accordance with the offer.
(2) If it appears from the writing that expresses the acceptance of the offer that it was sent under such circumstances that it would have reached the offeror in time had it been transported in the usual way, late acceptance has the effects of timely acceptance, unless the offeror without delay notifies at least orally the person to whom the offer was made determined that it considers the offer to have lapsed.
Taking into account the content of the offer or the practice that the parties have established between themselves, or if it is customary, the person to whom the offer is addressed may accept the offer by acting in accordance with it, in particular by providing or accepting performance. Acceptance of an offer is effective at the time the transaction takes place, provided it is timely.
The contract is concluded at the moment when the acceptance of the offer becomes effective.
Content of the contract
(1) The legal provisions governing individual types of contracts are applied to contracts whose content includes the essential elements of the contract set out in the basic provision for each of these contracts.
(2) The parties can also conclude such a contract, which is not specifically regulated as a type of contract.
If the contract is gratuitous, the debtor is deemed to have intended to commit less rather than more.
It is considered that the agreement that a certain part of the content of the contract will be subsequently agreed between the parties is a condition for the effectiveness of the concluded contract.
(1) If the parties agree that a third party or a court will determine a certain aspect of the contract, such determination is a condition for the contract to be effective. If the third party does not determine the requisites of the contract within a reasonable period of time or refuses to determine them, any party may propose that the court determine this requisite.
(2) When determining the requisites, the purpose that the contract seems to pursue, the circumstances under which the contract was concluded, as well as the fact that the rights and obligations of the parties are fairly arranged are taken into account.
If the authorized party does not propose supplementing the content of the contract within the agreed period, otherwise within one year from the conclusion of the contract, it is considered that the contract is canceled from the beginning.
(1) Part of the content of the contract can be determined by reference to the terms and conditions that the offeror attaches to the offer or that are known to the parties. Deviating provisions in the contract take precedence over the wording of the terms and conditions.
(2) If the parties in the offer and in the acceptance of the offer refer to business terms and conditions that contradict each other, the contract is still concluded with the content determined to the extent that the business terms and conditions do not conflict; this applies even if the terms and conditions exclude it. If one of the parties excludes it without undue delay at the latest after the exchange of expressions of will, the contract is not concluded.
(3) When concluding a contract between entrepreneurs, part of the content of the contract can be determined by simply referring to the terms and conditions drawn up by professional or interest organizations.
(1) If, in the course of ordinary business dealings, a party concludes contracts with a larger number of persons obliging them to repeat the same type of performance in the long term with reference to business terms and conditions, and if the nature of the commitment implies a reasonable need for their later change already during the negotiation of the conclusion of the contract, it can be agreed that the party may change the business conditions to a reasonable extent. The agreement is valid if it was at least agreed in advance how the change will be announced to the other party and if this party has the right to reject the changes and to terminate the obligation for this reason within a notice period sufficient to procure similar performance from another supplier; however, no consideration is given to an agreement that links such a statement with a special obligation burdening the party making the statement.
(2) If the scope of changes to the terms and conditions has not been agreed upon, changes caused by such a change in circumstances that the party referring to the terms and conditions had to assume when concluding the contract, or changes caused by a change in its personal or property circumstances, are not taken into account.
Provisions of business terms which the other party could not reasonably have expected are ineffective unless expressly accepted by that party; contrary arrangements are not taken into account. Whether it is such a provision will be assessed not only with regard to its content, but also to the way it is expressed.
(1) If the parties in the contract use a clause modified in the rules of interpretation used, it is considered that they intended this clause to produce the legal effects determined by the rules of interpretation to which they referred in the contract, or by those rules of interpretation which, taking into account the nature of the contract, are usually used .
(2) If one of the parties to the contract is not an entrepreneur, the meaning of the clause can only be invoked against that party if it is proven that its meaning must have been known to that party.
If a party generally waives objections to the validity of the contract, this is disregarded.
Form of contract
If the contract is not concluded in words, the will of the parties to agree on its details must be evident from the circumstances; at the same time, it will take into account not only the behavior of the parties, but also the issued price lists, public offers and other documents.
(1) After the conclusion of a contract between the parties in a form other than written, it is left to the parties to decide whether to confirm the content of the contract in written form.
(2) If, in the course of the parties' business, one of them does so towards the other in the belief that its confirmation faithfully captures the content of the contract, the contract shall be deemed to have been concluded with the content stated in the confirmation, even if it shows deviations from the actual agreed content of the contract. This only applies if the deviations stated in the confirmation change the actually agreed content of the contract in an immaterial way and are of such a nature that a reasonable businessman would still approve them, and on the condition that the other party does not reject these deviations.
(3) Paragraph 2 shall also apply if the contract was concluded during the business of one of the parties and its content is confirmed by the other party.
If the parties agree to use a certain form for the conclusion, it is considered that they do not wish to be bound if this form is not followed. This also applies if one of the parties expresses a desire for the contract to be concluded in writing.
Effects of the contract
General conditions
The contract binds the parties. It can be changed or canceled only with the consent of all parties, or for other legal reasons. The contract applies to other persons only in cases stipulated by law.
The fact that the party was not authorized to dispose of what is to be performed according to the contract when concluding the contract does not in itself cause the contract to be invalid.
The prohibition of encumbrance or alienation of the thing operates only between the parties, unless it was established as a right in rem. Such prohibition is valid if it was established for the duration of the trust fund, trust succession, representation or for any other definite and reasonable period in such interest of the party as is worthy of legal protection.
(1) If the law stipulates that a decision of a certain authority is required for the contract to be effective, the contract is effective with this decision.
(2) If the proposal for a decision has not been submitted within one year of the conclusion of the contract, it is considered that the contract is canceled from the beginning. This applies even if the proposal has been rejected.
If a party grants the right to use or enjoy the same thing at the same time to different persons through successively concluded contracts, the person to whom the transferor first provided the thing for use or enjoyment acquires such a right. If there is no such person, the right belongs to the person with whom the contract was concluded, which became effective first.
Change of circumstances
If, after the conclusion of the contract, the circumstances change to such an extent that the performance according to the contract becomes more difficult for one of the parties, this does not change anything about his obligations to fulfill the debt. This does not apply in the cases stipulated in § 1765 and 1766.
(1) If there is a change in circumstances so significant that the change establishes a particularly gross disproportion in the rights and obligations of the parties by disadvantaging one of them either by a disproportionate increase in the costs of performance, or by a disproportionate reduction in the value of the object of performance, the affected party has the right to demand from the other party that negotiations on the contract be resumed , if it proves that it could not reasonably anticipate or influence the change and that the fact occurred only after the conclusion of the contract, or that it became known to the affected party only after the conclusion of the contract. The exercise of this right does not entitle the affected party to delay performance.
(2) The right under paragraph 1 does not arise for the party concerned if it has assumed the risk of a change in circumstances.
(1) If the parties do not come to an agreement within a reasonable time, the court may decide, on the proposal of any of them, to change the obligation from the contract by restoring the balance of rights and obligations of the parties, or to cancel it on the date and under the conditions specified in the decision. The court is not bound by the proposal of the parties.
(2) The court will reject the proposal to change the obligation, if the affected party did not exercise the right to renew negotiations on the contract within a reasonable period of time, after it had to discover the change in circumstances; this period is considered to be two months.
Contract for the benefit of a third party
(1) If, according to the contract, the debtor has to perform to a third party, the creditor can demand that the debtor perform.
(2) According to the content, nature and purpose of the contract, it will be assessed whether and when the third party also acquired a direct right to demand performance. It is considered that a third party has acquired such a right, if the performance is mainly to benefit him.
(3) The debtor also has objections from the contract against a third party.
If a third party rejects the right acquired from the contract, it is regarded as if it had not acquired the right to performance. If this does not contradict the content and purpose of the contract, the creditor may request performance for himself.
Third party performance contract
If someone undertakes to ensure for the other party that a third person fulfills it, he undertakes by interceding with the third person to provide the agreed performance. However, if someone undertakes to ensure that a third party fulfills what was agreed upon, he will compensate the creditor for the damage that he will suffer if the fulfillment does not take place.
Special ways of concluding a contract
The provisions on the offer and the acceptance of the offer shall be applied appropriately even to cases where the parties agree on a different procedure for concluding the contract.
Auction
(1) During the auction, the contract is concluded with a hammer.
(2) A bid that has already been made will be canceled if a higher bid is submitted, or if the auction is ended otherwise than by knocking.
Public competition for the most suitable offer
Whoever announces a competition for the most suitable offer to unspecified persons, makes it a call for tenders.
The announcer of the competition shall define in writing, at least in a general way, the subject of performance and the principles of the other content of the intended contract, which he insists on, and shall determine the method of submission of bids and the deadline by which bids can be submitted, as well as the deadline for notification of the selected bid. The content of the competition conditions will be published in an appropriate manner.
The announcer cannot change the published conditions of the competition or cancel the competition, unless it has been reserved in the conditions of the competition. He will publish the change or cancellation in the same way he published the terms of the competition.
(1) The announcer will include the offer in the competition if its content corresponds to the published conditions of the competition. The offer may deviate from them only to the extent permitted by the conditions of the competition.
(2) An offer submitted after the deadline specified in the competition conditions cannot be included in the competition.
(3) The proposer has the right to reimbursement of costs associated with participation in the competition, if the conditions of the competition allow it.
(1) Unless the conditions of the competition specify otherwise, the offer cannot be withdrawn after the deadline specified in the conditions of the competition for the submission of offers.
(2) The terms of the competition may specify that the offer can be changed or supplemented; however, changes or additions to the offer made after the deadline specified in the conditions of the competition for submitting offers will not be taken into account. Errors made during the preparation of the offer can be corrected at any time, unless the conditions of the competition exclude it.
(1) The announcer will select the most suitable offer and announce its acceptance in the manner and within the time limit specified in the competition conditions.
(2) If the conditions of the competition do not specify the method of selecting a bid, the announcer is entitled to select the bid that suits him best.
(1) The announcer accepts the offer selected in accordance with § 1777. If he notifies the acceptance of the offer to the proposing party after the period specified in the conditions of the competition, the contract will not be formed if the selected proposer informs the announcer without undue delay that he rejects the acceptance of the offer as late.
(2) The announcer can reject all submitted offers, if he has reserved this in the conditions of the competition.
After the end of the competition, the announcer will notify the bidders who were unsuccessful in the competition that they have rejected their bids without undue delay.
Public offering
(1) A public offer is a manifestation of the will of the proposer, by which he addresses unspecified persons with a proposal to conclude a contract.
(2) An initiative to conclude a contract, which does not imply the intention to conclude a certain contract or which does not have the requirements according to Section 1732, paragraph 1, is considered a call for tenders.
A public offer can be revoked if the proposer has published the revocation before the public offer is accepted in the manner in which the public offer was published.
(1) On the basis of a public offer, the contract is concluded with the person who first notifies the proposer in time and in accordance with it that he accepts the public offer. If several persons accept the public offer at the same time, the contract is concluded with the one chosen by the proposer.
(2) If the public offer does not specify a period for acceptance, a period appropriate to the nature of the public offer applies.
(1) The proposer shall notify the recipient of the conclusion of the contract without undue delay after acceptance of the public offer. They will announce to the others that they have failed.
(2) If the proposer confirms the conclusion of the contract to the recipient later than stipulated in paragraph 1, the contract will not be formed if the recipient refuses the conclusion of the contract without undue delay after receiving the confirmation of the conclusion of the contract from the proposer.
(1) If the public offer expressly so determines, the contract is concluded with a certain number of persons, or with all those who accepted the public offer within the period according to § 1782.
(2) If the proposer does not fulfill the notification obligation, he is bound by all acceptances of the public offer, the originators of which he did not notify the result.
Future agreement
Basic provision
With the contract on the future contract, at least one party undertakes to conclude a future contract, the content of which is agreed upon at least in a general way, after being invited within an agreed period, otherwise within one year.
The obliged party is obliged to conclude the contract without undue delay after being invited to do so by the entitled party in accordance with the contract on the future contract.
(1) If the obligated party fails to fulfill the obligation to conclude a contract, the entitled party may demand that the content of the future contract be determined by a court or a person specified in the contract. If this person does not determine the content of the future contract within a reasonable period of time or refuses to determine it, the entitled party may propose that the court determine it.
(2) The content of the future contract will be determined according to the purpose that the conclusion of the future contract is supposed to pursue. In doing so, it is based on the proposals of the parties and takes into account the circumstances under which the contract on the future contract was concluded, as well as to ensure that the rights and obligations of the parties are fairly arranged.
(1) If the entitled party does not invite the obligated party to conclude the contract in time, the obligation to conclude a future contract ceases.
(2) If the circumstances on which the parties apparently assumed the future contract at the time of the formation of the obligation change to such an extent that the obligated party cannot reasonably be required to conclude the contract, the obligation to conclude the future contract ceases. If the obliged party does not notify the entitled party of a change in circumstances without undue delay, it shall compensate the entitled party for the resulting damage.
Content of commitments
General conditions
From the obligation, the debtor is obliged to give something, do something, refrain from something or suffer something, and the creditor is entitled to demand it from him.
The obligation cannot be changed without the agreement of the creditor and the debtor, unless the law provides otherwise.
(1) The creation and duration of the obligation is not prevented if the reason on the basis of which the debtor has an obligation to perform is not expressed; however, the creditor is required to prove the reason for the obligation.
(2) If it is a liability from a security, the creditor does not prove the reason for the liability, unless the law specifically provides for it.
Payment for performance
(1) If the contract stipulates the obligation of the parties to provide and accept performance for a fee, without stipulating its amount, or the manner in which this amount will be determined, it applies that the fee was agreed at the usual amount at the time and place of the conclusion of the contract. If the amount of payment cannot be determined in this way, it will be determined by the court taking into account the content of the contract, the nature of the performance and customs.
(2) If the payment was agreed in violation of the legal regulations on prices, the one that is admissible according to these regulations shall be considered as agreed.
Disproportionate shortening
(1) If the parties commit to mutual performance and if the performance of one of the parties is grossly disproportionate to what the other party has provided, the shortened party may demand the cancellation of the contract and the return of everything to its original state, unless the other party supplements what was shortened, taking into account the usual price at the time and place of conclusion of the contract. This does not apply if the disparity in mutual performance is based on a fact of which the other party did not know or need not have known.
(2) Paragraph 1 does not apply in the case of acquisition on a commodity exchange, in the case of trading with an investment instrument under another law, in an auction or in a manner set up as a public auction, nor in the case of a bet or a game, or in the case of settlement or novation, if they were made honestly.
(1) The right according to § 1793 does not arise if the reason for the disparity of mutual performance results from a special relationship between the parties, especially if the short-changed party intended to perform partly for payment and partly free of charge, or if the amount of the short-cut cannot be ascertained.
And further ….
Part 1Private law
§ 1
(1) The provisions of the legal system regulating the mutual rights and obligations of persons create private law in their entirety. The application of private law is independent of the application of public law.
(2) If the law does not expressly prohibit it, persons may agree on rights and obligations deviating from the law; arrangements that violate good morals, public order or the law concerning the status of persons, including the right to the protection of personality, are prohibited.
§ 2
(1) Each provision of private law can only be interpreted in accordance with the Charter of Fundamental Rights and Freedoms and the constitutional order in general, with the principles on which this law is based, as well as with constant regard to the values that are protected by it. If the interpretation of an individual provision based solely on its wording diverges from this order, it must yield to it.
(2) A statutory provision cannot be given a different meaning than that which follows from the proper meaning of the words in their mutual connection and from the clear intention of the legislator; but no one may invoke the words of a statute against its meaning.
(3) The interpretation and application of a legal regulation must not be contrary to good morals and must not lead to cruelty or ruthlessness that offends ordinary human feelings.
§ 3
(1) Private law protects the dignity and freedom of a person as well as his natural right to take care of his own happiness and the happiness of his family or people close to him in a way that does not cause harm to others without reason.
(2) Private law rests mainly on the principles that
a) everyone has the right to the protection of his life and health, as well as freedom, honor, dignity and privacy,
b) family, parenthood and marriage enjoy special legal protection,
c) no one may suffer unjustified harm because of lack of age, reason or because of the dependence of his position; however, no one may also unjustifiably benefit from their own incapacity to the detriment of others,
d) the promise is binding and contracts are to be fulfilled,
e) property rights are protected by law and only the law can determine how property rights are created and extinguished, and
f) no one can be denied what is rightfully his.
(3) Private law also springs from other generally recognized principles of justice and law.
§ 4
(1) It is assumed that every self-righteous person has the mind of an average person and the ability to use it with ordinary care and caution, and that everyone can reasonably expect this from them in legal dealings.
(2) If the legal order makes a certain consequence dependent on someone's knowledge, what is meant is the knowledge that a person with knowledge of the case reasonably acquires when considering the circumstances that must have been obvious to him in his position. This applies similarly if the legal order links a certain consequence with the existence of doubt.
§ 5
(1) Whoever, publicly or in contact with another person, applies for professional performance as a member of a certain profession or status, thereby shows that he is able to act with the knowledge and care associated with his profession or status. If he acts without this professional care, it is to his detriment.
(2) Against the will of the party concerned, the nature or validity of a legal action cannot be questioned just because someone who does not have the necessary authorization for their activity, or whose activity is prohibited, acted.
§ 6
(1) Everyone has an obligation to act honestly in legal dealings.
(2) No one may profit from his dishonest or illegal act. No one may even benefit from an illegal state that they have caused or over which they have control.
§ 7
One who acted in a certain way is considered to have acted honestly and in good faith.
§ 8
Obvious abuse of rights does not enjoy legal protection.
Part 2Use of civil law regulations
§ 9
(1) The Civil Code regulates the personal status of persons.
(2) Private rights and obligations of a personal and property nature are governed by the Civil Code to the extent that they are not regulated by other legal regulations. Customs can be looked into when the law invokes them.
§ 10
(1) If the legal case cannot be decided on the basis of an explicit provision, it will be assessed according to the provision that relates to the legal case in terms of content and purpose closest to the assessed legal case.
(2) If there is no such provision, the legal case will be assessed according to the principles of justice and the principles on which this law is based, in order to arrive at a good arrangement of rights and obligations, taking into account the customs of private life and taking into account the state of legal doctrine and established decision-making practice.
§ 11
The general provisions on the creation, change and extinction of rights and obligations from obligations in Part Four of this Act shall also be applied proportionately to the creation, change and extinction of other private rights and obligations.
Part 3Protection of private rights
§ 12
Anyone who feels that their rights have been abridged can seek protection from a body exercising public authority (hereinafter referred to as "authority of public authority"). Unless otherwise stipulated in the law, this body of public authority is the court.
§ 13
Anyone who seeks legal protection can reasonably expect that his legal case will be decided similarly to another legal case that has already been decided and which coincides with his legal case in essential features; if the legal case was decided differently, anyone seeking legal protection has the right to a convincing explanation of the reason for this deviation.
§ 14Self help
(1) Everyone can reasonably help himself to his right if his right is threatened and if it is obvious that the intervention of public authority would come too late.
(2) If there is an imminent threat of an unauthorized interference with the law, anyone who is so threatened can avert it by the efforts and means that a person in his position must consider reasonable in the circumstances. However, if the self-help is only aimed at securing a right that would otherwise be thwarted, the person who proceeded with it must contact the relevant public authority without undue delay.
TITLE IIPERSONS
Part 1general provisions
§ 15
(1) Legal personality is the ability to have rights and obligations within the limits of the legal order.
(2) Self-righteousness is the ability to acquire rights for oneself through one's own legal action and to commit oneself to obligations (to act legally).
§ 16
No one can renounce legal personality or self-righteousness, even in part; if he does so, it is disregarded.
§ 17
(1) Only a person can have and exercise rights. The obligation can only be imposed on a person and the fulfillment of the obligation can only be enforced against him.
(2) If someone establishes a right or imposes an obligation on what is not a person, the right or obligation is attributed to the person to whom it belongs according to the nature of the legal case.
§ 18
A person is a natural person or a legal entity.
§ 19
(1) Every person has innate natural rights that can be recognized by reason and feeling alone, and is therefore considered to be a person. The law only determines the limits of the application of human natural rights and the method of their protection.
(2) The natural rights associated with human personality cannot be alienated and cannot be waived; if it does, it is ignored. Limitation of these rights to the extent contrary to the law, good morals or public order is not taken into account either.
§ 20
(1) A legal entity is an organized body that is determined by law to have legal personality, or whose legal personality is recognized by law. Regardless of the subject of its activity, a legal entity may have rights and obligations that are consistent with its legal nature.
(2) Legal entities under public law are subject to the laws under which they were established; the provisions of this law are only applied if it is compatible with the legal nature of these persons.
§ 21
The state is considered a legal entity in the field of private law. Another legal regulation determines how the state acts legally.
§ 22
(1) A close person is a relative in the direct line, a sibling and a spouse or a partner under another law governing registered partnerships (hereinafter referred to as "partner"); other persons in a family or similar relationship are considered to be persons close to each other, if the damage suffered by one of them is reasonably felt by the other as their own damage. It is considered that close persons are also persons who are brothers-in-law or persons who live together permanently.
(2) If the law establishes special conditions or restrictions for the protection of third parties for the transfer of property, for encumbering it or leaving it for use by another among close persons, these conditions and restrictions also apply to similar legal transactions between a legal entity and a member of its statutory body or a person who substantially influences the legal entity as its member or on the basis of an agreement or other fact.
Part 2Individuals
Section 1General conditions
§ 23
A person has legal personality from birth until death.
§ 24
Each person is responsible for his actions, if it is possible to judge and control them. Whoever, through his own fault, brings himself to a state in which he would not otherwise be responsible for his actions, is responsible for the actions taken in that state.
§ 25
A conceived child is seen as already born if it suits his interests. The baby is considered to be born alive. However, if they are not born alive, they are looked at as if they never happened.
§ 26Proof of death
(1) The death of a person is proven by a public document issued after examining the body of the dead person in a prescribed manner.
(2) If the body of the dead cannot be examined in the prescribed manner, the court will declare the person dead even without a motion, if the person was involved in such an event that his death seems certain given the circumstances. In the decision, the court will determine the day that applies as the day of death.
§ 27
If the legal consequence depends on the fact that a certain person survived another person, and if it is not certain which of them died first, it is assumed that they all died at the same time.
§ 28
(1) If it is not known where a person died, it is assumed that it happened where their body was found.
(2) The place where a person declared dead died is the place where he was last alive.
§ 29Gender change
(1) The change of a person's sex occurs through a surgical procedure, with the simultaneous inability of the reproductive function and the transformation of the genitals. The day of gender change is considered to be the day indicated in the confirmation issued by the health service provider.
(2) Gender change does not affect a person's personal status, nor their personal and property circumstances; however, the marriage or registered partnership is terminated. The provisions on the obligations and rights of divorced spouses to their common child and their property obligations and rights after the divorce apply similarly to the obligations and rights of a man and a woman whose marriage has ended in relation to their common child and their property obligations and rights in the period after the dissolution of the marriage; the court will decide, even without a proposal, how each of the parents will take care of the common child in the future.
§ 30Majority
(1) A person becomes fully self-righteous in adulthood. Adulthood is attained upon the completion of eighteen years of age.
(2) Before reaching the age of majority, full self-determination is acquired by declaring self-determination or by entering into marriage. The self-rights acquired by the conclusion of the marriage is not lost either by the termination of the marriage or by the declaration of the marriage as invalid.
Minors
§ 31
It is considered that every minor who has not acquired full autonomy is capable of legal actions appropriate in nature to the intellectual and free maturity of minors of his age.
§ 32
(1) If the legal representative has given a minor who has not acquired full autonomy, in accordance with the customs of private life, consent to a certain legal act or to achieve a certain purpose, the minor is able to act legally himself within the limits of the consent, unless this is specifically prohibited by law; consent may subsequently be limited or withdrawn.
(2) If there are more than one legal representative, it is sufficient if at least one of them expresses their will towards the third person. However, if several representatives act together and contradict each other, the speech of any of them will not be taken into account.
§ 33
(1) If the legal representative of a minor, who has not acquired full autonomy, gives consent to the independent operation of a commercial plant or other similar gainful activity, the minor becomes eligible for actions connected with this activity. The court's permission is required for the consent to be valid.
(2) The permission of the court replaces the condition of a certain age, if it is established for the performance of a certain gainful activity by another legal regulation.
(3) Consent can be revoked by the legal representative only with the permission of the court.
§ 34
Dependent work of minors under the age of fifteen or minors who have not completed compulsory schooling is prohibited. These minors can only perform artistic, cultural, advertising or sports activities under the conditions set by another legal regulation.
§ 35
(1) A minor who has reached the age of fifteen and has completed compulsory schooling may undertake to perform dependent work in accordance with another legal regulation.
(2) The legal representative of a minor who has not reached the age of sixteen may terminate his employment relationship or contract for the performance of work establishing a similar obligation between the employee and the employer, if this is necessary in the interest of the education, development or health of the minor, in the manner established by another legal regulation.
§ 36
A minor who has not acquired full autonomy is never, regardless of the content of other provisions, capable of acting independently in those matters for which even his legal representative would need the permission of the court.
§ 37Recognition of self-righteousness
(1) If a minor who is not fully autonomous proposes that the court grant him autonomy, the court will grant the proposal if the minor has reached the age of sixteen, if his ability to support himself and take care of his own affairs is proven, and if the legal representative of the minor agrees to the proposal. In other cases, the court will grant the request if it is in the interest of the minor for serious reasons.
(2) Under the conditions set out in paragraph 1, the court will grant a minor self-determination even on the proposal of his legal representative, if the minor agrees to the proposal.
Section 2Support measures in the event of impairment of an adult's capacity to act legally
Preliminary statement
§ 38
In anticipation of his own incapacity to act legally, a person may express a will that his affairs be administered in a certain way, or that a certain person administer them, or that a certain person become his guardian.
§ 39
(1) If the declaration is not in the form of a public document, it must be made by a private document bearing the date and attested by two witnesses; the witness shall provide information about himself in the confirmation by which he can be identified.
(2) Witnesses can only be persons who have no interest in the statement and its content and who are not blind, deaf, mute or ignorant of the language in which the statement is made. Witnesses must sign the statement and be able to confirm the declarant's capacity to act and the content of his statement.
(3) If the content of a declaration made by a public deed determines who is to become the guardian, the person who drew up the public deed shall enter the information about who made the declaration, who is called as guardian and who drew up the public deed in a non-public list kept under another law .
§ 40
(1) If the statement is made by a blind person or a person who cannot or cannot read or write, the statement must be read aloud to him by a witness who did not write the statement. A blind person, or a person who cannot or cannot read or write, shall certify before witnesses that the document contains his true will.
(2) If the statement is made by a person with a sensory disability who cannot read or write, the content of the document must be interpreted to him in the way of communication he has chosen, by a witness who did not write the statement; all witnesses must master the means of communication by which the content of the document is interpreted. Whoever makes the statement confirms in front of witnesses, using the chosen method of communication, that the document contains his true will.
§ 41
(1) In order to explicitly revoke a declaration, a declaration of will is required in the form prescribed in § 39, paragraph 1.
(2) If the document containing the declaration is destroyed by the person who made it, it has the effects of revocation.
§ 42
If the declaration relates to a matter other than the profession of the guardian and if the effectiveness of the declaration is tied to a condition, the court will decide on the fulfillment of the condition.
§ 43
If the circumstances clearly change in such a substantial way that the person who made the statement would not have made it under such circumstances or would have made it with a different content, the court will change or cancel the statement if the person who made the statement would otherwise be at risk of serious harm. Before issuing a decision, the court will make the necessary efforts to find out the opinion of the person whose statement it is deciding, even using the method of communication that the person chooses.
§ 44
If the declaration or its revocation is invalid, the court will consider them, if there is no reason to doubt the will of the person who made them.
Help in making decisions
§ 45
If a person needs help in making a decision because a mental disorder causes difficulties in this, although he may not be limited in his autonomy, he can arrange the provision of support with the supporter; there may be more supporters.
§ 46
(1) With the assistance agreement, the supporter commits to the supportee that, with his consent, he will be present at his legal meetings, that he will provide him with the necessary information and communications, and that he will help him with advice.
(2) The contract becomes effective on the day it is approved by the court. If the contract is not concluded in writing, the parties are required to show their will to conclude the contract before the court. The court will not approve the contract if the interests of the supporter conflict with the interests of the supported.
§ 47
(1) The sponsor may not endanger the interests of the supported by improper influence, nor enrich himself without reason at the expense of the supported.
(2) The supporter proceeds in the fulfillment of his duties in accordance with the decisions of the supported. If the supported person legally acts in writing, the supporter can attach his signature indicating his function, and possibly also information about the support he provided to the supported person; the supporter also has the right to object to the invalidity of the supported legal action.
§ 48
At the motion of the supported or the supporter, the court shall recall the supporter; the court will revoke it even if the sponsor seriously violates its obligations, even without a motion.
Representation by a member of the household
§ 49
(1) If a mental disorder prevents an adult who has no other representative from acting independently, he or she may be represented by his or her descendant, ancestor, sibling, spouse or partner, or a person who lived with the represented person in a joint household for at least three years before the establishment of representation.
(2) The representative shall inform the represented person that he/she will represent him/her and shall clearly explain to him/her the nature and consequences of the representation. If the person to be represented refuses, the representation does not take place; the ability to express a wish is sufficient for refusal.
§ 50
Court approval is required to establish representation. Before issuing a decision, the court will make the necessary efforts to find out the opinion of the represented person, even using the method of communication that the represented person chooses.
§ 51
The representative ensures the protection of the interests of the represented and the fulfillment of his rights and that his way of life does not contradict his abilities and that, if this cannot reasonably be opposed, it corresponds to the special ideas and wishes of the represented.
§ 52
(1) Representation applies to usual matters, as it corresponds to the living conditions of the represented person. However, the representative is not authorized to grant consent to interfere with the mental or physical integrity of a person with permanent consequences.
(2) The representative can deal with the income of the represented to the extent necessary for the provision of usual affairs, as it corresponds to the living conditions of the represented; however, he can only deal with funds on the account of the represented person to the extent not exceeding the monthly living wage of an individual according to another legal regulation.
§ 53
If the person is represented by more than one representative, it is sufficient if one of them acts. However, if several representatives act together and contradict each other, the speech of any of them will not be taken into account.
§ 54
(1) The representation ceases if the representative renounces it or if the represented refuses to be further represented by the representative; the ability to express a wish is sufficient for refusal. The representation also expires if the court appoints a guardian for the represented person.
(2) If a decision-making assistance agreement is concluded, the representation will cease to be effective to the extent that the represented person is legally competent to act.
Limitation of autonomy
§ 55
(1) Limitation of self-rights can only be done in the interest of the person concerned, after seeing him and with full recognition of his rights and his personal uniqueness. In doing so, the extent and degree of a person's inability to take care of their own affairs must be thoroughly taken into account.
(2) A person's autonomy can only be limited if he would otherwise be at risk of serious harm and if milder and less restrictive measures are not sufficient in view of his interests.
§ 56
(1) Only a court can limit a person's autonomy.
(2) The court will make the necessary efforts to find out the opinion of the person about whose autonomy it is deciding, even using the method of communication that the person chooses.
§ 57
(1) The court can limit a person's autonomy to the extent that a person is not capable of legal action due to a mental disorder that is not only temporary, and it will define the extent to which the person's ability to legally act independently has been limited.
(2) If a person has difficulties in communicating, this is not in itself a reason to limit autonomy.
§ 58
The court may entrust a third party with the execution of certain individual legal actions or the management of property during the proceedings on the limitation of jurisdiction, if this is necessary to prevent serious damage.
§ 59
The court may limit its jurisdiction in connection with a certain matter to the time necessary for its settlement, or to a certain period otherwise determined, but no longer than three years; upon expiry of the period, the legal effects of the restrictions cease. However, if proceedings are initiated during this time to extend the limitation period, the legal effects of the original decision last until a new decision is issued, but no longer than one year.
§ 60
If the circumstances change, the court will immediately change or cancel its decision, even without a motion.
§ 61
If the court decides to limit a person's autonomy, the person called by it as a guardian can propose to be appointed as a guardian; if she does not submit the proposal, the court will find out her opinion. If this person is eligible for guardianship, the court appoints him as guardian with his consent.
§ 62
In a decision on the limitation of autonomy, the court appoints a guardian for a person. When choosing a guardian, the court takes into account the wishes of the ward, his needs and the suggestions of people close to the guardians, if they are looking out for his benefit, and makes sure that the selection of a guardian does not cause the ward's distrust of the guardian.
§ 63
A guardian may not appoint a person legally incapable of acting or a person whose interests conflict with the interests of the ward, or the operator of a facility where the ward resides or provides services to him or a person dependent on such a facility.
§ 64
The decision to limit autonomy does not deprive a person of the right to act independently legally in ordinary matters of everyday life.
§ 65
(1) If the guardian acted independently, even though he could not act without the guardian, his legal actions can only be declared invalid if they cause harm to him. However, if only a change in the scope of the guardian's duties is sufficient to remedy the situation, the court will do so without being bound by the parties' proposals.
(2) If the guardian acted independently, even though he could not act without the guardian, the guardian's actions are considered valid if the guardian approved them. This applies even if such a legal action was approved by the actor himself after he acquired legal rights.
Section 3Missing
§ 66
(1) The court can declare a person who has left his place of residence, has not reported himself, and whose whereabouts are unknown, to be a missing person. The court will state in the decision the day when the effects of the declaration of missingness occurred.
(2) A missing person can be declared missing at the request of a person who has a legal interest in it, especially a spouse or other close person, a co-owner, an employer or a corporation in which this person has a stake.
§ 67
(1) When assessing actions for which consent, consent, voting or other actions of a person declared missing are otherwise necessary, this necessity is not taken into account; however, this does not apply if it is a matter of his personal status. Whoever acts, touching the matter of the missing person, must do so taking into account his interests.
(2) A legal action that took place without the consent or other necessary manifestation of the will of the missing person after he left his place of residence, but before he was declared a missing person, although this declaration was proposed without undue delay, is regarded as an action made with a condition precedent to extradition the decision by which he was declared missing.
§ 68
If a person declared missing returns or appoints an administrator of his or her property, the declaration of missing person loses its effect. The declaration also loses its effect on the day that applies to the day of the missing person's death.
§ 69
A person who has been declared missing cannot object to the invalidity or ineffectiveness of legal actions taken in his absence, which occurred under the effects of such a declaration, because they did not require the expression of his will.
§ 70
If the person who appointed the administrator of his property is declared missing, this does not affect the rights and obligations of the appointed administrator. This does not apply if the administrator is unknown, refuses to act in the interest of the missing person, neglects his actions in the interest of the missing person, or cannot act at all.
Section 4Presumption of death
§ 71
(1) At the proposal of a person who has a legal interest in it, the court declares a person who can reasonably be believed to have died to be dead and determines the day that is considered to be the day of his death.
(2) A person who has been declared dead is looked upon as if he had died. When the husband is declared dead, the marriage ends on the day considered to be the day of his death; the same applies to registered partnerships.
§ 72
If a person has been declared missing and there is serious doubt as to whether he is still alive, although his death is not beyond doubt, the court may declare him dead on the motion of a person who has a legal interest in it, and shall determine the day on which the missing apparently did not survive. This day is believed to be the day of the missing person's death.
§ 73
A person who has been declared missing can be declared dead no earlier than five years after the end of the year in which they were declared missing. However, this cannot be done if during this time there is a message from which it can be judged that the missing person is still alive. In such a case, the procedure is according to § 74 or 75.
§ 74
(1) A person who has gone missing by leaving his place of residence, has not reported himself and his whereabouts are unknown, but has not been declared missing, can be declared dead no earlier than seven years after the end of the year in which he appeared the last report from which it can be concluded that he was still alive.
(2) A person who has gone missing before reaching the age of eighteen cannot be declared dead before the end of the year in which twenty-five years have passed since his birth.
§ 75
A person who went missing as a participant in an event in which the lives of a large number of people were in danger can be declared dead no earlier than three years after the end of the year in which the last report appeared, from which it can be concluded that he was during these events still alive.
§ 76
(1) If a person has been declared dead, it does not exclude proof that he died sooner or later, or that he is still alive. If he is found to be alive, the declaration of dead is disregarded; however, the marriage or registered partnership is not renewed.
(2) If a false proof of death was made, paragraph 1 shall be applied mutatis mutandis.
Section 5The person's name and residence
A person's name and its protection
§ 77
(1) A person's name is his personal name and surname, or his other names and surnames that belong to him according to the law. Every person has the right to use his name in legal relations, as well as the right to protect and respect his name.
(2) A person who uses a name other than his own in legal dealings bears the consequences of mistakes and the resulting damage.
§ 78
(1) A person who has been affected by the questioning of his right to a name or who has suffered damage due to an unauthorized interference with this right, in particular through the unauthorized use of a name, may demand that the unauthorized interference be waived or that its consequences be removed.
(2) If the person concerned is absent, or if he is missing, incapacitated, or if for some other reason he cannot exercise the right to protect his name himself, his spouse, descendant, ancestor or partner may exercise it, unless the affected person, even if he is incompetent, has expressly made it clear, that he doesn't want it.
(3) If the unauthorized intervention concerns the surname and if the reason for this is an important interest in the protection of the family, the spouse or another person close to the person concerned may claim protection independently, even if their right to the name was not directly affected.
§ 79pseudonym
(1) A person can adopt a pseudonym for a certain field of activity or even for private communication. Legal proceedings under a pseudonym are not detrimental to validity if it is clear who acted and the other party cannot have doubts about the person acting.
(2) If a pseudonym becomes known, it enjoys the same protection as a name.
§ 80Residence
(1) A person is domiciled in a place where he stays with the intention of living there permanently subject to a change in circumstances; such intention may be inferred from his statement or from the circumstances of the case. If a person lists a place other than his actual residence as his residence, anyone can also invoke his actual residence. A person who claims the said place in good faith cannot argue that he has his real residence in another place.
(2) If a person does not have a residence, they are considered to be the place where they live. If such a place cannot be ascertained, or if it can only be ascertained with disproportionate difficulties, the place where the person has property, or the place where he last resided, is considered to be a person's residence.
Section 6A person's personality
Subsection 1General conditions
§ 81
(1) A person's personality is protected, including all his natural rights. Everyone is obliged to respect a person's free choice to live according to his own will.
(2) In particular, the protections enjoy the life and dignity of a person, his health and the right to live in a favorable environment, his seriousness, honor, privacy and his manifestations of a personal nature.
§ 82
(1) A person whose personality has been affected has the right to demand that the unauthorized interference be stopped or that its consequences be removed.
(2) After a person's death, any person close to him can claim the protection of his personality.
§ 83
(1) If the unauthorized interference with a person's personality is related to his activity in a legal entity, this legal entity can also exercise the right to protect his personality; during his lifetime, however, only in his name and with his consent. If a person is unable to express their will due to absence or lack of judgment, consent is not required.
(2) After the death of a person, a legal entity can demand that the unauthorized interference be stopped and that its consequences be removed.
Subsection 2Appearance and privacy
§ 84
Capturing a person's form in any way so that it is possible to determine his identity based on the image is only possible with his permission.
§ 85
(1) Expanding the form of a person is possible only with his permission.
(2) If someone consents to the display of their likeness under circumstances from which it is clear that it will be disseminated, it is valid that they also consent to its reproduction and distribution in the usual way, as they could reasonably expect given the circumstances.
§ 86
No one may invade another's privacy unless they have a legal reason to do so. In particular, it is not possible to violate a person's private spaces, monitor their private life or make an audio or video recording of it, use such or other recordings made of a person's private life by a third party, or disseminate such recordings of their private life without their permission. Private documents of a personal nature are also protected to the same extent.
§ 87
(1) Anyone who has given permission to use a written document of a personal nature, a likeness or an audio or video recording relating to a person or his expressions of a personal nature, may revoke the permission, even if he has granted it for a certain period of time.
(2) If the permission granted for a certain period of time was revoked without this being justified by a substantial change in circumstances or another reasonable reason, the appellant shall compensate the resulting damage to the person to whom the permission was granted.
§ 88
(1) Permission is not required if the likeness or audio or visual recording is taken or used to exercise or protect other rights or legally protected interests of others.
(2) Permission is not required even if a likeness, a written document of a personal nature or an audio or video recording is taken or used on the basis of the law for an official purpose or if someone makes a public appearance on a matter of public interest.
§ 89
An image or audio or visual recording may also be acquired or used in an appropriate manner for scientific or artistic purposes and for press, radio, television or similar news without the person's permission.
§ 90
A legal reason to invade the privacy of another or to use his or her likeness, personal writing, or audio or video recording may not be used in an unreasonable manner in conflict with a person's legitimate interests.
Subsection 3The right to mental and physical integrity
§ 91
Man is untouchable.
§ 92
(1) The human body is under legal protection even after the person's death. Disposing of human remains and human remains in a manner that is unworthy of the deceased is prohibited.
(2) If the human remains are not deposited in a public burial ground, the person who was explicitly designated by the person before his death has the right to release them; otherwise his spouse, child, or parent in turn, and if none of them are present, or if they refuse to receive the remains, his heir will receive them.
Impingement on integrity
§ 93
(1) Apart from the case established by law, no one may intervene in the integrity of another person without his consent given with knowledge of the nature of the intervention and its possible consequences. If one consents to be seriously harmed, it is disregarded; this does not apply if the intervention is necessary under all circumstances in the interest of the life or health of the person concerned.
(2) A legal representative can give consent to interfere with the integrity of the person represented, if it is for the direct benefit of a person who is unable to give consent himself.
§ 94
(1) Anyone who wants to perform an operation on another person must explain the nature of the operation to them in a comprehensible manner. The explanation is properly given if it can be reasonably assumed that the other party has understood the method and purpose of the intervention, including the expected consequences and possible dangers to their health, as well as whether another procedure is also possible.
(2) If consent is given on behalf of another person, the person to be subjected to the intervention will also be given an explanation, if he is capable of judgement, in a manner commensurate with his ability to understand the explanation in question.
§ 95
A minor, who is not fully independent, can also give consent to an intervention on his body himself in usual matters, if it is appropriate for the intellectual and voluntary maturity of minors of his age and if it is an intervention that does not leave permanent or serious consequences.
§ 96
(1) Consent to interfere with a person's integrity requires a written form if a part of the body that cannot be regenerated is to be severed.
(2) Consent also requires written form
a) medical experiment on humans, or
b) an intervention that the person's medical condition does not require; this does not apply in the case of cosmetic procedures that do not leave permanent or serious consequences.
§ 97
(1) Consent may be revoked in any form, even if written consent is required.
(2) If written consent is not required, it is deemed to have been given. In case of uncertainty as to whether the consent was revoked in a form other than in writing, it is assumed that the revocation did not occur.
§ 98
(1) If a person cannot give consent due to the inability to express a will, even temporarily, and if he does not have a legal representative, the consent of a spouse, parent, or other close person present is required. If none of these persons are present, the consent of the spouse is required, and if not, the consent of the parent or other close person, if they can be identified and reached without difficulty and if it is clear that there is no risk of delay. If it is not possible to obtain consent in any of the above-mentioned ways, consent may be granted by another person present who proves an extraordinary interest in the person concerned.
(2) During the procedure and when giving consent, the previously expressed known wishes of the person whose integrity is to be affected are taken into account.
§ 99
If a person's life is in sudden and obvious danger, and if consent cannot be obtained in an emergency, even in a form other than the prescribed one, immediate action can be taken if it is necessary for the health of the person concerned.
§ 100
(1) If the integrity of a minor who has reached fourteen years of age, has not acquired full autonomy and who seriously objects to the intervention is to be interfered with, even if the legal representative agrees to the intervention, the intervention cannot be carried out without the consent of the court. This also applies in the event of the procedure being performed on an adult who is not fully autonomous.
(2) If the legal representative does not agree to an intervention in the integrity of the person mentioned in paragraph 1, even if this person wishes it, the intervention can be carried out at his proposal or at the proposal of a person close to him only with the consent of the court.
§ 101
If the integrity of a person incapable of judgment is to be interfered with in a way that leaves permanent, unavoidable and serious consequences or in a way connected with a serious danger to his life or health, the intervention can only be carried out with the permission of the court. This does not affect the provisions of § 99.
§ 102
The court will consent to the intervention according to Section 100 or 101, if it is in the interest of the person concerned, after seeing it and with full recognition of his personality.
§ 103
If the integrity of a person who was in a state where he could not assess what was happening to him was affected, and if he did not give his consent to the intervention, it must be explained to him as soon as his condition allows, in a way that he will be able to understand, what procedure was performed on him, and he must be instructed about its possible consequences and the risk of not performing the procedure.
Subsection 4The rights of a person admitted to a medical facility without his consent
§ 104
A person can be admitted to a health care facility without his consent or kept in it without his consent only for reasons established by law and on the condition that the necessary care for his person cannot be ensured by milder and less restrictive measures. Filing a motion to limit autonomy does not in itself establish a reason for a person to be taken to or held in such a facility without their consent.
§ 105
(1) If a person is admitted to or detained in a health care facility, the health care provider shall immediately notify his legal representative, guardian, or supporter and his spouse or other known close person; however, he may not make the announcement to his spouse or other close person, if he was forbidden to do so.
(2) The admission of a person to a facility providing health care is notified by the health service provider within 24 hours to the court; this also applies if a person is detained in such a facility. The court will decide on the measure taken within seven days.
§ 106
(1) The provider of health services shall ensure that a person admitted to a facility providing health care or detained in such a facility receives, without undue delay, an appropriate explanation of his legal status, the legal reason for the measure taken, and the options for legal protection, including the right to choose an attorney or confidant.
(2) The explanation is given in such a way that a person can sufficiently understand it and realize the nature of the action taken and its consequences; if such a person has a legal representative, guardian or supporter, the explanation shall also be given to him without undue delay.
§ 107
(1) If a person has an agent or trustee, the health service provider shall notify the agent or trustee of the measures taken without undue delay after becoming aware of them.
(2) The fiduciary may exercise all his rights on behalf of the person in his name arising in connection with his admission to the relevant facility or his keeping in such a facility. A supporter has the same rights as a trustee.
§ 108
Anyone who has been admitted to a health care facility or who is kept in it has the right to discuss their own affairs with their representative, confidant or supporter in a personal interview and without the presence of third parties.
§ 109
(1) A person admitted to a facility providing health care or held in such a facility has the right to have his medical condition, medical documentation, or statement of the attending physician about the inability to judge and express wishes independently reviewed by a physician independent of the provider of health services in that facility and its operator. A trustee or supporter has the same right.
(2) If the right to review is exercised even before the court makes a decision pursuant to Section 105, paragraph 2, it must be possible to exercise it in such a way that the court can evaluate the results of the review in proceedings on the admissibility of the measure taken.
§ 110
If the court decides on the admissibility of the measure taken, this approves the forced stay in a facility providing health care, but this does not take away the right to refuse a certain procedure or treatment.
Subsection 5Dealing with human body parts
§ 111
(1) A person who has had a body part taken away has the right to know how it was disposed of. Disposing of the removed part of the human body in a manner that is unworthy of a person or in a manner that endangers public health is prohibited.
(2) The removed part of a person's body can be used for medical, research or scientific purposes during his lifetime, if he has given his consent. The use of a removed part of a person's body for a purpose that is unusual in nature always requires his express consent.
(3) The same applies to what originates in the human body as to the parts of the human body.
§ 112
A person can leave a part of his body to another person only under the conditions established by another legal regulation. This does not apply in the case of hair or similar parts of the human body which can be removed painlessly without anesthesia and which regenerate naturally; these can be left to someone else for a fee and are viewed as chattels.
Subsection 6Protection of the human body after the death of a person
§ 113
(1) A person has the right to decide how his body will be disposed of after his death.
(2) Performing an autopsy or using a human body after a person's death for the needs of medical science, research or for teaching purposes without the consent of the deceased is only possible if another law provides.
§ 114
(1) A person is entitled to decide what kind of funeral he should have. If he does not leave an explicit decision about it, the deceased's husband, and if there is no one, the deceased's children, will decide on his burial; if there are none, then the parents decide, and if there are none, the siblings of the deceased; if they are not alive, then their children decide, and if they are not there either, then any of the close people; if there is none of these persons, then the municipality in whose territory the person died decides.
(2) Burial costs and burial arrangements are covered by the estate. If the estate is not sufficient to cover the cost of the manner of burial the deceased desired, he must at least be buried in a decent manner according to local customs.
(3) Another legal regulation determines how and at whose expense a person will be buried whose estate is insufficient to cover the costs of the funeral and if no one is willing to cover the costs of the funeral voluntarily.
§ 115
If a person dies without consenting to an autopsy or to the use of his body after death in accordance with Section 113, it is valid that he does not consent to the autopsy or such use of his body.
§ 116
Whoever consents to having his body dissected or used in the manner according to § 113 after his death, shall enter his opinion in the register kept according to another legal regulation; this consent can also be expressed in a public document, or towards a provider of health services with effects towards this provider.
§ 117
Consent to an autopsy or to the use of one's body after death for medical science, research, or educational purposes can be revoked. If a person in a healthcare facility revokes their consent, they can do so by means of a statement in writing.
Part 3Legal entities
Section 1General conditions
§ 118
A legal entity has legal personality from its creation to its demise.
§ 119
Legal entities keep reliable records of their financial affairs, even if they are not required to keep accounts according to another legal regulation.
Public registers of legal entities
§ 120
(1) At least the date of its creation, the date of its dissolution with the indication of the legal reason and the date of its termination, as well as its name, registered office address and object of activity, the name and address of the residence or registered office of each member of the statutory body, together with an indication of the method, shall be entered in the public register , how this body represents the legal entity, and data on the date of creation or termination of their function.
(2) Another legal regulation determines what public registers of legal entities are, which legal entities are entered into them and how, or which other data about legal entities are entered into them, and how they are deleted from them, or whether a collection of documents is part of the public register. Public registers of legal entities are accessible to everyone; everyone can view them and take extracts, descriptions or copies from them.
(3) If the recorded fact changes, the registered person or the person who is required to do so by law shall notify the person who maintains the public register of the change without undue delay, and he shall enter this change in the public register without undue delay.
§ 121
(1) The person to whom the entry relates does not have the right to object that the entry does not correspond to reality against a person who legally acts by trusting the data entered in the public register.
(2) If the information entered in the public register has been published, no one can claim after fifteen days from the publication that they could not have known about the published information. If the published data does not correspond to the recorded data, the person to whom the data relates cannot invoke the published data against another person; however, if she proves that she was aware of the information entered, she can object to it that the published information does not correspond to the information entered.
Establishment and creation of a legal entity
§ 122
A legal entity can be established by a founding legal act, a law, a decision of a public authority, or in another way provided for by another legal regulation.
§ 123
(1) The founding legal proceedings shall determine at least the name, registered office of the legal entity, object of activity, the legal entity's statutory body and how it is created, if the law does not directly stipulate this. It will also determine who the first members of the statutory body are.
(2) A written form is required for founding legal proceedings.
§ 124
If it is not stated for what time the legal entity is established, it is valid that it is established for an indefinite period.
§ 125
(1) Multiple founders establish a legal entity by adopting articles of association or concluding another contract.
(2) The law determines in which cases a legal entity can be established even by the legal actions of one person contained in the founding document.
§ 126
(1) A legal entity is created on the day of registration in the public register.
(2) If a legal entity is established by law, it is created on the date of its entry into force, unless the law specifies a later date.
(3) The law determines in which other cases an entry in the public register is not required for the creation of a legal entity. The law specifies in which cases a decision of a public authority is required to establish or create a legal entity.
§ 127
It is possible to act on behalf of a legal entity even before its establishment. Whoever acts in this way is entitled and bound by this action alone; if several persons act, they are jointly and severally authorized and bound. A legal entity can assume the effects of these actions for itself within three months of its creation. In such a case, she is entitled and bound by these negotiations from the beginning. If she takes them over, she will let other participants know that she has done so.
§ 128
After the creation of a legal entity, it is not possible to request a determination that it has not been created, and its registration in the public register cannot be canceled for that reason.
§ 129
(1) The court shall declare a legal entity invalid after its creation even without a petition, if
a) founding legal proceedings are missing,
b) founding legal proceedings do not have the requisites necessary for the legal existence of a legal entity,
c) the legal actions of the founders contradict § 145 or
d) the legal entity was founded by fewer persons than are required by law.
(2) On the day a legal entity is declared invalid, it enters into liquidation.
§ 130
Before making a decision pursuant to Section 129, the court shall grant the legal entity a reasonable period of time to remedy the defect, if it is a defect that can be removed.
§ 131
The declaration of a legal entity as invalid does not affect the rights and obligations it has acquired.
Name
§ 132
(1) The name of the legal entity is its name.
(2) The name must distinguish a legal entity from another entity and contain an indication of its legal form. The name must not be misleading.
§ 133
(1) The name may contain the name of a person to whom the legal entity has a special relationship. If a person is alive, his name can be used in the name of a legal entity only with his consent; if he died without consent, the consent of his husband is required, and if he is not, the consent of an adult descendant, and if he is not, the consent of an ancestor.
(2) If a surname was used in the name of the legal entity and if the reason for this is an important interest in the protection of the family, § 78 paragraph 3 shall be applied mutatis mutandis.
(3) Whoever has the right to grant consent to the use of a person's name in the name of a legal entity has the right to revoke it at any time, even if he has granted it for a certain period of time; if something else was agreed, it is not taken into account if the withdrawal of consent is justified by a substantial change in circumstances or another reasonable reason. If the consent granted for a certain period of time was revoked without a substantial change in circumstances or another reasonable reason, the appellant shall compensate the legal entity for the resulting damage.
§ 134
(1) The name of a legal entity may contain some characteristic element of the name of another legal entity, if there is a reason for this in their mutual relationship. Even in that case, the public must be able to distinguish the two names sufficiently.
(2) The characteristic element of the name of another legal entity cannot be used in the name without its consent. The provision of Section 133, paragraph 3, shall be applied mutatis mutandis.
§ 135
(1) A legal entity that has been affected by the questioning of its right to a name or that has suffered damage due to an unauthorized interference with this right, or that is threatened with such damage, in particular by unauthorized use of the name, may demand that the unauthorized interference be waived or that its consequences be removed.
(2) The same protection belongs to a legal entity against anyone who interferes with its reputation or privacy without lawful reason, unless it is for scientific or artistic purposes or press, radio, television or similar news; however, even such an intervention must not conflict with the legitimate interests of the legal entity.
§ 136Headquarters
(1) When establishing a legal entity, its seat is determined. If it does not disturb the peace and order in the house, the residence can also be in the apartment.
(2) If a legal entity is registered in the public register, it is sufficient if the founding legal act states the name of the municipality where the legal entity is located; however, the legal entity proposes to enter the full address of the registered office in the public register.
§ 137
(1) Anyone can claim the real seat of a legal entity.
(2) A legal entity cannot object to the person who invokes the seat registered in the public register that he has a real seat in another place.
Relocation of headquarters
§ 138
(1) A legal entity that has its registered office abroad can relocate its registered office to the territory of the Czech Republic. This does not apply if it is not permitted by the legal order of the state in which the legal entity has its seat, or if it concerns a legal entity prohibited under Section 145.
(2) A legal entity that intends to relocate its headquarters to the territory of the Czech Republic shall attach to the application for registration in the relevant public register a decision on the legal form of the Czech legal entity it has chosen, and the founding legal proceedings required by the Czech legal code for this form of legal entity.
(3) The internal legal relations of a legal entity are governed by the Czech legal system after the relocation of the registered office to the Czech Republic. Czech law also governs the liability of its members or members of its bodies for the debts of the legal entity, if they arose after the effective date of the relocation of the registered office to the country.
§ 139
A legal entity that has its registered office in the Czech Republic may relocate its registered office abroad, if this does not contradict public order and if it is permitted by the legal order of the state to which the registered office of the legal entity is to be relocated.
§ 140
(1) A legal entity that intends to relocate its headquarters abroad shall publish this intention, indicating the address of the new headquarters and the legal form after the relocation of the headquarters, at least three months before the date of the anticipated relocation of the headquarters. Creditors have the right to demand sufficient security for their still outstanding claims within two months of publication, if the collectability of their claims in the Czech Republic deteriorates after the relocation of the registered office.
(2) If there is no agreement on the method and extent of collateral, the court will decide on sufficient collateral and its extent, taking into account the type and amount of the claim. If the legal entity does not provide security according to the court's decision, the members of the statutory body are liable for the debts that were not secured, except for those who prove that they have made sufficient efforts to fulfill the decision.
§ 141
(1) A member of a legal entity who did not agree to the relocation of the registered office abroad has the right to terminate the membership of the legal entity with effects as of the date of the relocation of the registered office. If a member of a legal entity has a right to settlement upon termination of membership, the legal entity shall provide him with settlement no later than the effective date of the relocation of the registered office. The members of the statutory body are responsible for the fulfillment of this obligation.
(2) Members of the legal entity and its statutory body are liable for debts incurred before the effective date of the relocation of the registered office, just as they were before the relocation of the registered office abroad.
§ 142
The relocation of the seat is effective from the date of entry of its address in the relevant public register.
§ 143
Sections 138 to 142 apply mutatis mutandis to the establishment and relocation of branches of legal entities.
Purpose of legal entities
§ 144
(1) A legal entity can be established in public or private interest. Its nature is assessed according to the main activity of the legal entity.
(2) The law determines for which purposes a legal entity can be established only if special conditions are met.
§ 145
(1) It is prohibited to establish a legal entity whose purpose is to violate a law or to achieve a goal in an illegal manner, especially if its purpose is
a) denying or restricting the personal, political or other rights of persons because of their nationality, sex, race, origin, political or other opinion, religion and social status,
b) inciting hatred and intolerance,
c) promoting violence or
d) the management of a public authority or the exercise of public administration without legal authorization.
(2) It is prohibited to establish a legal entity armed or with armed components, unless it is a legal entity established by law, which is expressly permitted or imposed by law to be armed or the creation of an armed component, or a legal entity that handles weapons in connection with its business according to another legal regulation , or a legal entity whose members hold or use weapons for sporting or cultural purposes or for hunting or to fulfill tasks according to another legal regulation.
Public utility
§ 146
Public benefit is a legal entity whose mission is to contribute to the achievement of the general welfare through its own activities in accordance with the founding legal act, if only persons of integrity have a significant influence on the decisions of the legal entity, if it has acquired property from honest sources and if it economically uses its wealth for public benefit purpose.
§ 147
A public benefit legal entity has the right to enter the status of public benefit in the public register if it fulfills the conditions set by another legal regulation.
§ 148
If the status of public benefit is entered in the public register, the person who keeps the public register deletes it, if the legal entity renounces the status of public benefit, or if the court decides to revoke it. By deletion from the public register, the status of public benefit ceases.
§ 149
The court decides on the revocation of the status of public benefit upon the proposal of a person who has a legal interest in it, or even without a proposal in the event that the legal entity ceases to meet the conditions for its acquisition and does not remedy the deficiency within a reasonable period of time even upon the request of the court.
§ 150
Only a legal entity whose status of public benefit is entered in the public register has the right to state in its name that it is a public benefit.
Bodies of a legal entity
§ 151
(1) The law determines, or the founding legal proceedings determine, in what manner and to what extent the members of the bodies of the legal entity make decisions on its behalf and replace its will.
(2) The good faith of the members of the body of the legal entity is attributed to the legal entity.
§ 152
(1) A legal entity forms bodies with one member (individual) or several members (collective).
(2) A natural person who is a member of a body of a legal entity and who is elected, appointed or otherwise called to office (hereinafter referred to as "member of the elected body") must be fully independent. This also applies to a representative of a legal entity that is itself a member of the elected body of another legal entity.
(3) If the main activity of the legal entity concerns minors or persons with limited autonomy and if the main purpose of the legal entity is not business, the founding legal proceedings may determine that a member of the elected collective body of the legal entity may also be a minor or a person with limited autonomy.
§ 153
(1) A person whose bankruptcy has been certified may become a member of an elected body if he has notified the person who calls him to the position in advance; this does not apply if at least three years have passed since the end of the insolvency proceedings.
(2) If the bankruptcy of a person who is a member of an elected body has been certified, this person shall notify the person who appointed him or her without undue delay.
(3) If there was no notification, anyone who has a legal interest in it can demand that the member of the elected body be removed from office by the court. This does not apply if the person who appointed the member of the elected body decided, after learning about the bankruptcy certificate of this person, that he should remain in office.
§ 154
If the member of the elected body of the legal entity is another legal entity, it authorizes a natural person to represent it in the body, otherwise the legal entity is represented by a member of its statutory body.
§ 155
(1) If a member of an elected body has been appointed who is not qualified to do so according to the law, his appointment to the position is viewed as if it had not happened. If a member of an elected body loses the legal capacity to be a member of an elected body after being called to office, his office ceases; shall notify the legal entity of the termination of the function without undue delay.
(2) If the appointment of a person to the position of a member of an elected body is regarded as if it had not happened, or if the appointment is invalid, this does not affect the right acquired in good faith.
§ 156
(1) If the body is collective, it decides on the affairs of the legal entity in the congregation. It is able to resolve in the presence or other participation of the majority of members and makes decisions by the majority of the votes of the participating members.
(2) If the authority of individual members of the body is divided according to certain fields, the provisions of paragraph 1 shall not apply. The division of powers does not absolve the other members of the duty to supervise how the affairs of the legal entity are managed.
§ 157
(1) If the decision is adopted, at the request of the member of the elected body who opposed the proposal, his dissenting opinion is recorded.
(2) If the proposal was accepted in the absence of one of the members, this member is entitled to learn the content of the decision.
§ 158
(1) The founding legal meeting can establish a higher number of participants for the body's ability to reach a resolution, require a higher number of votes for the adoption of a decision, or establish a procedure by which the body's decision-making method can be changed.
(2) Founding legal proceedings may allow the body to make decisions outside of the meeting in written form or with the use of technical means.
(3) The founding legal proceedings may specify that in the event of equality of votes in the decision-making of the elected body of the legal entity, the vote of the chairman shall be decisive.
§ 159
(1) Whoever accepts the position of a member of an elected body undertakes to perform it with the necessary loyalty and with the necessary knowledge and diligence. It is considered that he is acting negligently if he is not capable of this care of a proper householder, even if he had to find out when accepting the position or during its performance, and does not draw the consequences for himself.
(2) A member of an elected body performs the function in person; however, this does not prevent a member from authorizing another member of the same body to vote for him in his absence.
(3) If a member of the elected body did not compensate the legal entity for the damage caused to it by breach of duty while performing the function, although he was obliged to compensate the damage, he is liable to the creditor of the legal entity for its debt to the extent to which he did not compensate the damage, if the creditor cannot obtain performance from the legal entity.
§ 160
If a member of an elected body resigns from his position by means of a statement sent to a legal entity, the position ceases after two months from the date of the statement.
Acting on behalf of a legal entity
§ 161
Whoever represents the legal entity shall make it clear what authorizes him to do so, if it does not already follow from the circumstances. Whoever signs on behalf of a legal entity shall attach his signature to its name, as well as information about his function or job title.
§ 162
If a legal entity is represented by a member of its body in a manner entered in the public register, it cannot be argued that the legal entity did not adopt the necessary resolution, that the resolution was flawed, or that a member of the body violated the adopted resolution.
§ 163
The statutory body has all powers that are not entrusted to another body of a legal entity by the founding legal proceedings, the law or the decision of a public authority.
§ 164
(1) A member of the statutory body may represent a legal entity in all matters.
(2) If the competence of the statutory body belongs to several persons, they form a collective statutory body. If the founding legal proceedings do not determine how its members represent the legal entity, each member does so independently. If the founding legal act requires the members of the statutory body to act together, the member can represent the legal entity as an agent separately, only if he has been authorized to perform a certain legal action.
(3) If a legal entity with a collective statutory body has employees, it shall entrust one member of the statutory body with legal actions towards employees; otherwise, this authority is exercised by the chairman of the statutory body.
§ 165
(1) If the statutory body does not have a sufficient number of members required for decision-making, the court appoints the missing members on the proposal of the person who certifies the legal interest for the period until new members are called according to the procedure determined in the founding legal proceedings; otherwise, the court appoints a guardian for the legal entity, even without a proposal, whenever it learns about it in the course of its activities.
(2) The court appoints a guardian for a legal entity, even without a proposal, if the interests of a member of the statutory body conflict with the interests of the legal entity and if the legal entity does not have another member of the body capable of representing it.
§ 166
(1) The legal entity is represented by its employees to the usual extent due to their classification or function; at the same time, the state of how it appears to the public is decisive. What is stipulated about the representation of a legal entity by an employee applies similarly to the representation of a legal entity by its member or by a member of another body not registered in the public register.
(2) The limitation of the representative authority by the internal regulation of the legal entity has effects towards a third party only if it had to be known to him.
§ 167
A legal entity is bound by an illegal act committed by a member of an elected body, an employee or another of its representatives towards a third party in the performance of its duties.
Cancellation of a legal entity
§ 168
(1) A legal entity is dissolved by legal action, expiration of time, decision of a public authority or achievement of the purpose for which it was established, and for other reasons established by law.
(2) Voluntary dissolution of a legal entity is decided by its competent authority.
§ 169
(1) After the dissolution of a legal entity, its liquidation is required, unless all of its assets are acquired by a legal successor, or if the law provides otherwise.
(2) If it does not follow from the legal proceedings on the dissolution of a legal entity, whether it is dissolved with liquidation or without liquidation, it is valid that it is dissolved with liquidation.
§ 170
Whoever decided on the dissolution of a legal entity with liquidation can change the decision until the purpose of the liquidation has been fulfilled.
§ 171
With liquidation, the legal entity is dissolved
a) the expiry of the period on which it was founded,
b) achieving the purpose for which it was established,
c) on the day specified by law or by a legal act on the dissolution of a legal entity, otherwise on the day of its effectiveness, or
d) the effective date of the decision of the public authority, unless a later date is specified in the decision.
§ 172
(1) At the request of the person who certifies a legal interest, or even without a request, the court shall dissolve the legal entity and order its liquidation, if
a) engages in illegal activity to such an extent that it seriously disturbs public order,
b) no longer fulfills the prerequisites required for the creation of a legal entity by law,
c) has not had a statutory body capable of quorum for more than two years, or
d) so the law provides.
(2) If the law allows the court to dissolve a legal entity for a reason that can be removed, the court shall set a reasonable period for it to eliminate the deficiencies before issuing a decision.
§ 173
(1) If the legal entity is dissolved during the transformation, it is dissolved without liquidation on the effective date of the transformation.
(2) If the bankruptcy of a legal entity has been certified, it is canceled without liquidation by canceling the bankruptcy after meeting the schedule resolution, or by canceling the bankruptcy because the assets are completely insufficient; however, it will enter into liquidation if any property appears after the end of the insolvency proceedings.
Transformation of a legal entity
§ 174
(1) Transformation of a legal entity is a merger, division and change of legal form.
(2) A legal entity can change its legal form only if the law provides for it.
§ 175
(1) Whoever decided on the transformation of a legal entity can change the decision until the transformation becomes effective.
(2) If the transformation of a legal entity becomes effective, it cannot be decided that it did not occur, nor can the legal action that led to the transformation be declared invalid, and the registration of the transformation in the public register cannot be cancelled.
§ 176
(1) During the conversion, a decisive date must be determined from which the actions of the terminating legal entity are considered from an accounting point of view as actions carried out on behalf of the successor legal entity.
(2) As of the day preceding the decisive day, the liquidating legal entity or the legal entity divided by spin-off shall draw up the final financial statements. On the decisive date, the successor legal entity or the legal entity divided by spin-off shall draw up an opening balance sheet.
§ 177
(1) The effectiveness of the transformation of a legal entity entered in the public register occurs on the date of entry into the public register. In such a case, the decisive date is set so that it does not precede the date of submission of the proposal for registration of the conversion in the public register by more than twelve months.
(2) If the persons involved are registered in the public register in different districts, a proposal to register the conversion is submitted in any of them and the public authority will enter all recorded facts in the public register on the same day.
§ 178
(1) A merger takes place by merging or merging at least two participating legal entities. A merger or amalgamation is considered a transfer of the employer's business.
(2) In a merger, at least one of the parties involved ceases to exist; the rights and obligations of the terminating persons are transferred to only one of the participating persons as a successor legal entity.
(3) In the event of a merger, all participating persons cease to exist and a new legal entity is created in their place as a successor entity; the rights and obligations of all disappearing persons are transferred to it.
§ 179
(1) A legal entity with a split is divided with the establishment of new legal entities, or it is divided during a simultaneous merger with other legal entities (hereinafter referred to as "division by merger"). A legal entity can also be established by splitting off or by combining several methods of division. Division by merger, spin-off, as well as other methods of division, are considered to be the transfer of the employer's business.
(2) If the legal entity divided by division ceases to exist and its rights and obligations pass to several successor legal entities, then
a) if successor legal entities participate in the division as already existing persons, it is a division by merger,
b) if the successor legal entities are yet to be created by division, this is a split with the establishment of new legal entities.
(3) When a legal entity is divided by spin-off, the divided legal entity is not canceled or terminated, but the separated part of its rights and obligations is transferred to an existing or newly established successor entity.
§ 180
In the cases referred to in Section 179, paragraph 2 or 3, the competent authority of the legal entity shall decide which employees of the terminating legal entity will become employees of individual successor legal entities.
§ 181
Legal entities with different legal forms may merge and divide only if the law so provides.
§ 182
If, through the transformation of a legal entity, its property is transferred to a successor legal entity, and if, according to another legal regulation, the consent of a public authority is required for the transfer of rights and obligations, this consent is also required for the transformation of a legal entity.
§ 183
(1) When the legal form is changed, the legal entity whose legal form is changed is not canceled or terminated, only its legal conditions change, and in the case of a corporation, also the legal status of its members.
(2) If the day on which the draft contract or the decision to change the legal form was drawn up is not a balance sheet date according to another legal regulation, the legal entity shall draw up an interim financial statement for that day. The data from which the financial statements are compiled as of the date of processing the change of legal form must not precede the date of the legal entity's decision on the change of legal form by more than three months.
§ 184
(1) A decision can be made on the transformation of a legal entity established by law if the law expressly provides for it.
(2) The conversion of a legal entity established by a decision of a public authority is decided by this authority.
Extinction of a legal entity
Disposal
§ 187
(1) The purpose of the liquidation is to settle the assets of the dissolved legal entity (liquidation essence), settle debts to creditors and dispose of the net asset balance resulting from the liquidation (with the liquidation balance), according to the law.
(2) A legal entity enters liquidation on the day it is dissolved or declared invalid. If a legal entity registered in the public register goes into liquidation, the liquidator shall propose entry into liquidation in the public register without undue delay. During liquidation, the legal entity uses its name with the addition "in liquidation".
§ 188
If a legal entity goes into liquidation, no one may legally act on its behalf beyond the scope set out in § 196 from the moment when he learned about its entry into liquidation or when he should and could have learned about it.
§ 189
(1) Upon entry into liquidation, the competent authority shall appoint a liquidator to the legal entity; only a person qualified to be a member of the statutory body can be a liquidator. If the function of the liquidator ceases before the dissolution of the legal entity, the competent authority of the legal entity shall appoint a new liquidator without undue delay.
(2) If the legal entity is in liquidation and if the liquidator has not been called, all members of the statutory body exercise his powers.
§ 190
If several liquidators are called to liquidate a legal entity, they form a collective body.
§ 191
(1) A liquidator is appointed by the court, even without a proposal, for a legal entity that entered into liquidation without a liquidator being called in accordance with Section 189. The court appoints a liquidator even if it itself decided to dissolve the legal entity.
(2) At the proposal of a person who certifies a legal interest in this, the court dismisses a liquidator who does not properly fulfill his duties and appoints a new liquidator.
(3) If no other proposal has been submitted or if the proposal cannot be granted, the court can appoint a member of the statutory body as a liquidator in the procedure according to paragraph 1 or 2 even without his consent. Such a liquidator cannot resign from his position. However, he may propose to the court to relieve him of his position if he proves that he cannot be fairly required to perform the position.
(4) If the liquidator cannot be appointed even according to paragraph 3, the court appoints him from among the persons entered in the list of insolvency administrators.
§ 192
If the liquidator was appointed by the court, third parties shall provide cooperation to the liquidator to the same extent as they are obliged to provide it to the insolvency administrator.
§ 193
The liquidator acquires the powers of a statutory body at the moment of his appointment. The liquidator is equally responsible for the proper performance of his duties as a member of the statutory body.
§ 194
Only the court can dismiss the liquidator who was appointed to the position.
§ 195
The liquidator's remuneration and the method of its payment are determined by the person who called him.
§ 196
(1) The activity of the liquidator can only pursue a purpose that corresponds to the nature and goal of the liquidation.
(2) If a legal person has acquired an inheritance or a legacy with a condition, a time commitment or an order, the liquidator will observe these restrictions. However, if the legal entity received earmarked funds from public budgets, the liquidator will use these funds according to the decision of the authority that provided them; the liquidator proceeds similarly if the legal entity received funds earmarked for the achievement of a publicly beneficial purpose.
§ 197
During the liquidation, the liquidator will preferentially satisfy the claims of the employees; this does not apply if the legal entity is bankrupt.
§ 198
(1) The liquidator shall notify all known creditors of the entry of the legal entity into liquidation.
(2) The liquidator shall, without undue delay, publish at least twice in a row, at least two weeks apart, the notification according to paragraph 1, together with a call for creditors to register their claims within a period that must not be shorter than three months from the second publication.
§ 199
(1) The liquidator shall draw up the opening balance sheet and inventory of the legal entity's assets on the date of entry of the legal entity into liquidation.
(2) The liquidator will issue an inventory of assets against payment of costs to any creditor who requests it.
§ 200
If the liquidator discovers during the liquidation that the legal entity is bankrupt, he shall file an insolvency petition without undue delay, unless it is a case referred to in § 201.
§ 201
(1) If it is a case according to Section 173, paragraph 2, and the liquidation proceeds are not sufficient to satisfy all debts, the liquidator will pay the costs of the liquidation from the proceeds in the first group, satisfy the employees' claims from the balance in the second group, and then pay the claims of other creditors in the third group.
(2) If it is not possible to fully settle claims in the same group, they will be satisfied proportionately.
§ 202
(1) If it is not possible to monetize the entire liquidation asset within a reasonable time, the liquidator will settle the costs and claims from the first and then from the second group, if possible, from the partial proceeds; this does not affect § 201, paragraph 2. The liquidator then offers the creditors of the claims of the third group the liquidation substance to take over for the payment of debts.
(2) If it is not possible to monetize even a part of the liquidation property within a reasonable time, or if the claims of the first and second groups are not completely settled from the partial proceeds, the liquidator will offer the liquidation property to be taken over by all creditors.
(3) A creditor who has been offered liquidation assets pursuant to paragraph 1 or 2 and has not responded to the offer within two months is deemed to have accepted the offer; this effect will not occur if the liquidator has not instructed him in the offer.
§ 203
(1) Creditors who take over the liquidation assets are each entitled to a share determined by the ratio of the amount of their claims; in the rest, their claims are extinguished.
(2) If any of the creditors refuses to participate in taking over the liquidation assets, their claim is considered extinguished. This does not apply if previously unknown assets of the legal entity are subsequently discovered.
§ 204
(1) If all creditors refuse to take over the liquidation substance, the liquidation substance passes to the state on the day of the dissolution of the legal entity; the liquidator shall notify the competent authority under another law without undue delay.
(2) Without regard to Sections 201 to 203, a creditor who is a secured creditor under another law is entitled to satisfaction from the security with which his claim was secured. If the secured creditor is not fully satisfied in his claim in this way, he is entitled to the rest of the performance according to Sections 201 to 203.
§ 205
(1) As soon as the liquidator has completed everything that precedes the handling of the liquidation balance or the transfer of the liquidation assets pursuant to § 202 or the notification pursuant to § 204, he shall draw up a final report on the progress of the liquidation, in which he shall state at least how the liquidation assets were disposed of and, where applicable, also a proposal for the use of the liquidation balance. On the same day, the liquidator will draw up the financial statements. The liquidator attaches a signature record to the financial statements.
(2) The final report, the proposal for the use of the liquidation balance and the financial statements are submitted by the liquidator for approval to the person who appointed him to the position. A person who has become a liquidator pursuant to Section 189, paragraph 1, shall submit a final report, a proposal for the use of the liquidation balance and financial statements to the authority of the legal entity that has the power to remove him from office, or the power to control him. If there is no such authority, the liquidator shall submit these documents and proposals for approval by the court.
(3) The deletion of a legal entity from the public register is not prevented by the fact that the documents referred to in paragraph 1 have not been approved.
§ 206
(1) As long as the rights of all creditors who have filed their claims in time pursuant to Section 198 are not satisfied, a share of the liquidation balance cannot be paid out either in the form of an advance payment or used in any other way.
(2) If the claim is disputed or not yet due, the liquidation balance can only be used if sufficient security has been provided to the creditor.
§ 207
The liquidation ends with the use of the liquidation balance, the taking over of the liquidation substance by the creditor, or its rejection. The liquidator submits a proposal for deletion of the legal entity from the public register within thirty days from the end of the liquidation.
§ 208
If, even before the deletion of a legal entity from the public register, its previously unknown property is discovered or if the need for other necessary measures appears, the liquidation will not end and the liquidator will settle this property or carry out other necessary measures. After the end of these negotiations, he proceeds according to Sections 205 to 207; the provisions of § 170 do not apply.
§ 209
(1) If unknown assets of a legal entity are discovered after its deletion from the public register or if another interest worthy of legal protection appears, the court, on the proposal of the person who certifies the legal interest, cancels the deletion of the legal entity, decides on its liquidation and appoints a liquidator. According to this decision, whoever keeps the public register shall enter in it the restoration of the legal entity, the fact that it is in liquidation and information about the liquidator. Since the restoration, the legal entity has been viewed as if it had never ceased to exist.
(2) If the legal entity was restored due to the discovery of unknown assets, the unsatisfied claims of its creditors will be restored.
Section 2Corporation
Subsection 1Generally about corporations
§ 210
(1) A corporation is created as a legal entity by a community of persons.
(2) A legal entity formed by a single member is viewed as a corporation.
§ 211
(1) A corporation may have a single member if permitted by law. In such a case, a single member of the corporation cannot voluntarily terminate his membership unless a new person takes his place as a result.
(2) If the number of members of the corporation falls below the number established by law, the court will cancel it even without a motion and decide on its liquidation. First, however, he will give her a reasonable period of time to remedy the situation.
§ 212
(1) By accepting membership in the corporation, the member undertakes to behave honestly towards it and to preserve its internal order. The corporation must not unreasonably favor or disadvantage its member and must protect his membership rights and legitimate interests.
(2) If a member of a private corporation abuses the right to vote to the detriment of the whole, the court will decide, on the proposal of the person who proves a legal interest, that the vote of this member cannot be taken into account for a certain case. This right expires if the motion is not filed within three months from the day the abuse of voice occurred.
§ 213
If a member of the corporation or a member of its body damages the corporation in a way that establishes his obligation to compensate and by which another member of the corporation was also damaged in terms of the value of his participation, and if only this member claims compensation, the court may impose an obligation on the damage party even without a special proposal compensate the caused damage only to the corporation if the circumstances of the case justify it, especially if it is sufficiently obvious that such a measure will also compensate for the damage to the devalued participation.
Subsection 2Association
§ 214
(1) At least three persons guided by a common interest can establish an association to fulfill it as a self-governing and voluntary union of members and join together in it.
(2) If the associations create a new association as their association to pursue a common interest, they shall express its associational nature in the name of the new association.
§ 215
(1) No one may be forced to participate in the association and no one may be prevented from leaving it.
(2) Members of the association are not liable for his debts.
§ 216
The name of the association must contain the words "association" or "registered association", but the abbreviation "zs" will suffice.
§ 217
(1) The main activity of the association can only be the satisfaction and protection of those interests for the fulfillment of which the association was founded. Entrepreneurship or other gainful activity cannot be the main activity of the association.
(2) In addition to the main activity, the association may also develop a secondary economic activity consisting of business or other income-generating activity, if its purpose is to support the main activity or the economic use of the association's property.
(3) The profit from the association's activities can only be used for the association's activities, including the administration of the association.
Foundation of the association
§ 218
The founders establish the association if they agree on the content of the statutes; the articles of association contain at least
a) name and registered office of the association,
b) purpose of the association,
c) the rights and obligations of members towards the association, or determining the manner in which their rights and obligations will arise,
d) determination of the statutory body.
§ 219
The articles of association may establish a branch association as an organizational unit of the association or determine how the branch association is established and which body decides on the establishment, dissolution or transformation of the branch association.
§ 220
(1) If the articles of association determine that membership is of different types, they will also define the rights and obligations associated with individual types of membership.
(2) Limiting the rights or expanding the obligations associated with a certain type of membership can only be done under the conditions specified in advance in the articles of association, otherwise with the consent of the majority of the members concerned. This does not apply if the association has a just reason for limiting rights or expanding obligations.
§ 221
The articles of association must be filed in full at the registered office of the association.
Constituent meeting
§ 222
(1) An association can also be founded by a resolution of the founding meeting of the association. At the constituent meeting, the provisions on the membership meeting shall apply similarly.
(2) The convenor will draw up a draft of the articles of association and invite other interested parties to the founding meeting in an appropriate manner. The convenor or a person authorized by him will verify the correctness and completeness of the list of attendees.
§ 223
Everyone who attends the founding meeting and fulfills the conditions for membership in the association shall be entered in the list of those present, and shall sign their name and place of residence. The convenor or a person authorized by him will verify the correctness and completeness of the list of those present. It is valid that the persons registered in the attendance list have submitted a proper application to the association.
§ 224
(1) The constituent meeting is opened by the convenor or a person authorized by him. He informs the constituent meeting of the number of attendees and informs it of the actions that the convenor has already taken in the interest of the association. He will also propose to the constituent meeting the rules for its proceedings and the election of the chairman and any other officials.
(2) The constituent meeting elects the members of those bodies that it is supposed to elect according to the determination of the law and statutes.
(3) The constituent meeting adopts resolutions by the majority of votes present at the time of voting.
(4) Anyone who voted against the adoption of the draft statutes can withdraw from the application to the association. A record of this must be made in the list of those present with the signatures of the person resigning and the person who made the record.
§ 225
If at least three persons participate in the constituent meeting, they can approve the articles of association according to § 218.
Formation of the association
§ 226
(1) The association is established on the day of registration in the public register.
(2) The proposal to register the association in the public register is submitted by the founders or a person designated by the constituent meeting.
(3) If the association is not entered in the public register within thirty days from the submission of the application for registration and if a decision on refusal of registration is not issued within this period, the association is considered to have been entered in the public register on the thirtieth day from the submission of the application.
§ 227
If the association continues to operate even after its registration in the public register has been rejected, the provisions on the company shall apply.
Subsidiary association
§ 228
(1) The legal personality of the branch association is derived from the legal personality of the main association. A subsidiary association may have rights and obligations and acquire them to the extent determined by the statutes of the main association and entered in the public register.
(2) The name of the branch association must contain the characteristic element of the name of the main association and express its characteristic of the branch association.
§ 229
(1) A branch association is created on the day of entry into the public register.
(2) The main association submits a proposal for registration of a branch association in the public register.
(3) If a decision on registration or its refusal is not issued within thirty days from the submission of the proposal for registration, the branch association is considered to have been registered in the public register.
(4) The main association is entitled and bound jointly and severally with the subsidiary association from the legal proceedings of the branch association that occurred before the date of its registration in the public register. From the date of registration of the branch association in the public register, the main association guarantees the debts of the branch association to the extent determined by the articles of association.
§ 230
(1) By canceling the main association, the subsidiary association is also cancelled.
(2) The main association shall not be dissolved until all subsidiary associations are dissolved.
§ 231
By acquiring the status of public utility for the main association, the subsidiary associations also acquire this status. If the main association renounces the status of public utility, or if it is taken away from it, the subsidiary associations also lose it.
Membership
§ 232
(1) If the articles of association do not specify otherwise, membership in the association is binding on the person of the member and does not pass to his legal successor.
(2) If the member of the association is a legal entity, it is represented by the statutory body, unless the legal entity designates another representative.
§ 233
(1) After the establishment of the association, membership in it can be established by acceptance as a member or in another way determined by the statutes.
(2) Those who apply for membership in the association show their will to be bound by the statutes from the moment they become a member of the association.
(3) Acceptance as a member is decided by the body designated by the statutes, otherwise the highest body of the association.
§ 234
Membership in the main association is considered to be created by membership in the subsidiary association; this also applies to the termination of membership.
§ 235
The articles of association may determine the amount and due date of the membership fee or determine which body of the association determines the amount and due date of the member fee and how.
§ 236List of members
(1) If the association maintains a list of members, the articles of association will determine how entries and deletions related to the membership of persons in the association are made in the list of members. The statutes will further determine how the list of members will be made available, or whether it will not be made available.
(2) Each member, including former members, will receive a confirmation from the association, at their expense, at their request with an extract from the list of members containing their personal data, or confirmation that these data have been deleted. In place of the deceased member, his spouse, child or parent can apply for the certificate, and if there is none of them, another close person or heir can apply for the certificate, if they demonstrate an interest worthy of legal protection.
(3) The list of members may be published with the consent of all members who are registered in it; when publishing an incomplete list of members, it must be evident that it is incomplete.
Termination of membership
§ 237
Membership in the association is terminated by withdrawal, expulsion, or in other ways specified in the statutes or the law.
§ 238
If the articles of association do not specify otherwise, the membership will cease if the member does not pay the membership fee even within a reasonable period specified by the association additionally in the call for payment, although he was warned of this consequence in the call.
§ 239
(1) If the articles of association do not specify otherwise, the association may exclude a member who has seriously violated the obligation arising from membership and has not sought remedial action within a reasonable period of time even after being called upon by the association. A call is not required if the breach of duty cannot be remedied or if it has caused particularly serious damage to the association.
(2) The expulsion decision shall be delivered to the expelled member.
§ 240
(1) If the articles of association do not specify another body, the statutory body decides on the expulsion of a member.
(2) Unless otherwise specified by the articles of association, any member may submit a proposal for expulsion in writing; the proposal shall state the circumstances certifying the reason for the exclusion. The member against whom the motion is directed must have the opportunity to become familiar with the motion for expulsion, to request an explanation of it, and to state and document everything that is beneficial to him.
§ 241
(1) A member may, within fifteen days from the delivery of the decision in writing, propose that the decision on his exclusion be reviewed by the arbitration committee, unless the articles of association specify another body.
(2) The competent authority shall cancel the decision to expel a member if the expulsion contradicts the law or the statutes; can cancel the decision to exclude a member in other justified cases.
§ 242
An expelled member may, within three months from the delivery of the association's final decision on his expulsion, propose to the court to decide on the invalidity of the expulsion; otherwise this right expires. If the decision has not been delivered to him, the member can submit a proposal within three months from the day he became aware of it, but no later than one year from the day when, following the issuance of the decision, the termination of his membership by expulsion was entered in the list of members; otherwise this right expires.
Association organization
§ 243
The bodies of the association are the statutory body and the highest body, possibly the control commission, the arbitration commission and other bodies specified in the articles of association. The association's bodies can name the statutes as they wish, as long as this does not create a misleading impression about their nature.
§ 244
The articles of association determine whether the statutory body is collective (committee) or individual (chairman). If the articles of association do not specify otherwise, the highest body of the association elects and dismisses the members of the statutory body.
§ 245
A resolution of a member meeting or other body that contradicts good morals, or changes the statutes in such a way that their content contradicts the mandatory provisions of the law, is viewed as if it had not been adopted. This applies even if a resolution has been adopted in a matter on which this body does not have the authority to decide.
§ 246
(1) If the articles of association do not specify the term of office of the members of the association's elected bodies, this period is five years.
(2) If the articles of association do not specify otherwise, members of the association's elected bodies, whose number has not fallen below half, may co-opt substitute members for the next meeting of the body responsible for the election.
(3) If the articles of association do not specify otherwise, § 156 and § 159, paragraph 2, and the provisions on the members' meeting shall apply to the convening, meeting and decision-making of the association's collective bodies.
§ 247The highest body of the association
(1) The statutes shall determine which body is the highest body of the association; his remit usually includes determining the main focus of the association's activities, deciding on changes to the articles of association, approving the association's financial results, evaluating the activities of other association bodies and their members, and deciding on the association's dissolution with liquidation or its transformation.
(2) If, according to the statutes, the statutory body of the association is also its highest body and if it does not exercise authority for a period longer than one month, at least one fifth of the members of the association may call a meeting of all members of the association; the competence of the highest body of the association passes to the assembly. This does not apply if the articles of association provide otherwise.
(3) If the articles of association do not specify otherwise, the highest body of the association is the members' meeting; the provisions of Sections 248 to 257 shall apply to the membership meeting, unless the articles of association specify otherwise.
Membership meeting
§ 248
(1) The members' meeting is convened by the association's statutory body at least once a year.
(2) The statutory body of the association shall convene a member's meeting at the initiative of at least a third of the members of the association or the supervisory body of the association. If the association's statutory body does not convene a member's meeting within thirty days of receiving the initiative, the person who submitted the initiative may convene the member's meeting at the association's expense himself.
§ 249
(1) The meeting of the members shall be convened in an appropriate manner within the period specified by the statutes, otherwise at least thirty days before its holding. The place, time and agenda of the meeting must be clear from the invitation.
(2) If the meeting is convened in accordance with § 248, the agenda of the meeting may be changed against the proposal stated in the initiative only with the consent of the person who submitted the initiative.
(3) The place and time of the meeting shall be determined in such a way as to limit as little as possible the possibility of the members to participate in it.
§ 250
(1) Whoever convened the meeting may revoke or adjourn it in the same manner as it was convened. If this happens less than a week before the announced date of the meeting, the association will compensate the members who attended the meeting according to the invitation, for the purposefully incurred costs.
(2) If the meeting is called according to § 248, it can be called off or postponed only on the motion or with the consent of the person who initiated it.
§ 251
Every member is entitled to participate in the meeting and to request and receive an explanation of the affairs of the association, if the requested explanation relates to the subject of the meeting of members. If a member requests information at a meeting about facts that are prohibited by law or whose disclosure would cause serious damage to the association, they cannot be provided.
§ 252
(1) The members' meeting is able to reach a resolution with the participation of the majority of the association's members. The resolution is adopted by a majority of the votes of the members present at the time of the resolution; each member has one vote.
(2) If the articles of association determine, when regulating different types of membership in the association, that only an advisory vote is associated with a certain type of membership, this vote shall not be taken into account for the purposes of paragraph 1.
§ 253
(1) Whoever starts the meeting verifies whether the members' meeting is able to reach a resolution. After that, they will ensure the election of the chairman of the meeting and possibly other officials, if their election is required by the statutes.
(2) The chairman conducts the meeting as its agenda was announced, unless the membership meeting resolves to end the meeting early.
(3) A matter that was not included on the agenda of the meeting when it was announced can only be decided with the participation and consent of all members of the association entitled to vote on it.
§ 254
(1) The statutory body of the association shall ensure that minutes of the meeting are drawn up within thirty days of its conclusion. If this is not possible, the minutes will be drawn up by the person who chaired the meeting or who was authorized to do so by the members' meeting.
(2) The minutes must show who convened the meeting and how, when it was held, who started it, who presided over it, what other officers the member meeting elected, if any, what resolutions were adopted and when the minutes were drawn up.
(3) Every member of the association can consult the minutes of the meeting under the conditions determined by the statutes. If the articles of association do not specify otherwise, this right can be exercised at the registered office of the association.
§ 255Partial membership meeting
The articles of association may specify that the member meeting will be held in the form of partial member meetings, or also which matters cannot be decided in this way. If the bylaws allow the meetings of partial member meetings, they will also determine the period in which all meetings must be held. For the quorum and the adoption of the resolution, the participating members and the votes cast are added together.
§ 256Assembly of delegates
(1) The statutes may specify that the powers of the membership meeting are fulfilled by the assembly of delegates.
(2) Each delegate must be elected by an equal number of votes. If this is not easily possible, the articles of association may specify a reasonable deviation for the election of delegates.
§ 257Substitute session of the membership meeting
(1) If the members' meeting is unable to reach a resolution at its meeting, the statutory body or the person who convened the original meeting may, within fifteen days from the previous meeting, call a members' meeting for a substitute meeting with a new invitation. It must be clear from the invitation that it is a substitute meeting of the members' meeting. The substitute meeting of the members' meeting must be held no later than six weeks from the day on which the meeting of the members' meeting was previously called.
(2) At a substitute meeting, the members' meeting can only deal with matters included on the agenda of the previous meeting. It can adopt a resolution with the participation of any number of members, unless the articles of association stipulate otherwise.
(3) If the member meeting makes a decision at a meeting of sub-member meetings or if a meeting of delegates makes a decision instead, the procedure according to paragraphs 1 and 2 is similar.
Invalidity of the decision of the body of the association
§ 258
Any member of the association or anyone who has an interest in it worthy of legal protection may propose to the court to decide on the invalidity of the decision of the association's body for its conflict with the law or the articles of association, if the invalidity cannot be appealed to the association's bodies.
§ 259
The right to invoke the invalidity of the decision expires within three months from the day the petitioner learned or could have learned about the decision, but no later than one year from the adoption of the decision.
§ 260
(1) The court will not invalidate the decision if there was a violation of the law or statutes without serious legal consequences, and if it is in the interest of the association worthy of legal protection not to invalidate the decision.
(2) The court will not declare the decision invalid even if it would substantially affect the right of a third party acquired in good faith.
§ 261
(1) If the association has violated a member's basic membership right in a serious way, the member has the right to adequate satisfaction.
(2) If the association objects, the court will not grant the right to satisfaction to the member of the association, if it has not been applied
a) within the time set for filing a motion to declare the decision invalid, or
b) within three months from the effective date of the decision to reject the proposal, if this proposal was rejected according to § 260.
Audit Committee
§ 262
(1) If the articles of association establish an audit committee, it is required to have at least three members. If the articles of association do not specify otherwise, members of the control committee are elected and dismissed by the members' meeting. If the articles of association specify that the members of the control committee are appointed or dismissed by the statutory body, this is not taken into account.
(2) If the articles of association do not specify other restrictions, membership in the control committee is not compatible with membership in the association's statutory body or with the function of liquidator.
§ 263
The control committee supervises whether the affairs of the association are properly conducted and whether the association performs its activities in accordance with the statutes and legal regulations, unless the statutes entrust it with additional powers. If the control committee detects deficiencies, it will draw attention to them by the statutory body, as well as other bodies designated by the statutes.
§ 264
Within the scope of the control committee's powers, its authorized member may inspect the association's documents and demand explanations on individual matters from members of other association bodies or from its employees.
Referee Commission
§ 265
If an arbitration commission is established, it decides disputed matters belonging to the federal self-government to the extent determined by the statutes; if the statutes do not specify the jurisdiction of the arbitration commission, it decides disputes between the member and the association regarding the payment of membership fees and reviews the decision to expel a member from the association.
§ 266
(1) If the articles of association do not specify otherwise, the arbitration commission has three members who are elected and dismissed by the members' meeting or assembly of members of the association.
(2) A member of the arbitration committee can only be an adult and fully independent person who is of legal age and does not act as a member of the statutory body or control committee in the association. If no one proposed declaring the election of a member of the arbitration committee invalid due to lack of integrity, it shall apply, subject to a change in circumstances, that an integrity person was elected.
(3) A member is excluded from the activity of the arbitration commission if the circumstances of the case prevent or could prevent him from making an unbiased decision.
§ 267
Proceedings before the arbitration commission are governed by another legal regulation.
§ 268Dissolution of the association
(1) The court will dissolve the association with liquidation at the proposal of a person who has a legitimate interest in it, or even without a proposal in the event that the association, despite being notified by the court,
a) carries out activities prohibited in § 145,
b) carries out activities in violation of § 217,
c) forces third parties to become members of the association, to participate in its activities or to support it, or
d) prevents members from leaving the association.
(2) The provision of § 172 is not affected.
Liquidation of the association
§ 269
(1) When the association is dissolved with liquidation, the liquidator compiles an inventory of assets and makes it available to all members at the association's headquarters.
(2) The liquidator will issue an inventory of assets against payment of costs to any member who requests it.
§ 270
(1) If a liquidator cannot be called otherwise, the court appoints one of the members of the statutory body as the liquidator even without his consent. If this is not possible, the court appoints a member of the association as liquidator even without his consent.
(2) The liquidator appointed pursuant to paragraph 1 may not resign from his position, but he may propose to the court to relieve him from his position if he proves that he cannot be fairly required to perform his position.
§ 271
The liquidator will monetize the liquidation assets only to the extent that it is necessary for the fulfillment of the association's debts.
§ 272
(1) The liquidator disposes of the liquidation balance according to the articles of association. If the statutes of an association with public benefit status determine that the liquidation balance is to be used for purposes other than public benefit, this is not taken into account.
(2) If the liquidation balance cannot be disposed of according to the articles of association, the liquidator will offer the liquidation balance to the association with a similar purpose. If this is not possible, the liquidator will offer the liquidation balance to the municipality in whose territory the association has its registered office. If the municipality does not accept the offer within two months, the liquidation balance is acquired by the region in whose territory the association has its registered office. If a municipality or region receives the liquidation balance, it will only use it for a purpose of public benefit.
§ 273
If the association has received purpose-bound performance from the public budget, the provisions of § 272 shall not apply and the liquidator shall dispose of the relevant part of the liquidation balance according to the decision of the competent authority.
Merger of associations
§ 274
Participating associations conclude a merger agreement as an agreement on the merger of associations or as an agreement on the merger of associations.
§ 275
The merger agreement contains at least information on the name, seat and identifying information of each of the participating associations, indicating which association is the terminating association and which is the successor association, and the decisive date.
§ 276
(1) The agreement on the merger of the associations also contains an agreement on the articles of association of the successor association.
(2) If the articles of association of the successor association are changed during the merger, the merger agreement also contains an agreement on this change.
§ 277
(1) Together with the draft merger agreement, the members of the statutory bodies of the participating associations will prepare a report explaining the economic and legal reasons and consequences of the merger. The report can also be prepared as a joint report for all participating associations.
(2) A report explaining the economic and legal reasons and consequences of the merger need not be drawn up if all members of the participating association are members of its statutory or supervisory body or if all members of the participating association agree to it.
§ 278
The meeting of the members, to which the draft merger agreement will be submitted for approval, must be announced by the convener at least thirty days before its holding. They must be made available to all members within this period
a) draft merger agreement,
b) the articles of association of the successor association,
c) statement of assets and liabilities of all participating associations no older than six months a
d) a report explaining the economic and legal reasons and consequences of the merger, if its preparation is necessary.
§ 279
(1) Participating associations shall publish a joint notice at least thirty days before the members' meeting, in which they will indicate which associations are affected by the merger and which association will become the successor association.
(2) If the association is not a recipient of performance from the public budget, if it has a negligible number of creditors and if the total amount of debts is negligible, it is sufficient if it delivers a notice to known creditors.
§ 280
If the creditor of the participating association submits a claim within six months from the date on which the registration of the merger became effective for him, he has the right to sufficient security if the claimability of the claim deteriorates. If the creditor proves that, as a result of the merger, the collectability of the claim will deteriorate in a substantial way, he has the right to sufficient security even before the merger is registered in the public register.
§ 281
(1) The draft merger agreement is approved by the member meetings of the participating associations. The membership meeting can only approve or reject the draft merger agreement.
(2) Members' meetings of participating associations can also be convened jointly. Then the member meetings of the participating associations vote separately on the draft merger agreement. However, if members of the bodies of the successor association are elected after the approval of the draft merger agreement, the member meetings of the participating associations may decide to vote on these members together.
§ 282
The person who signs the draft merger agreement on behalf of the participating association shall attach to the signature, in addition to other requirements, the statement that the draft agreement was approved by the members' meeting of the association and when this happened. The merger agreement is adopted by the resolution of the members' meeting of the last of the participating associations on the approval of the draft merger agreement and its signature on behalf of this association.
§ 283
A motion to declare the merger agreement invalid can only be submitted together with a motion to invalidate the resolution of the members' meeting approving this agreement. Only the participating association or a person authorized to submit a motion to declare the membership meeting invalid has the right to claim invalidity.
§ 284
(1) The proposal to enter the merger into the public register is submitted jointly by all participating associations. If it is a merger by fusion, members of the statutory body of the successor association will also sign the proposal.
(2) On the basis of the proposal, the competent authority registers the merger by deleting the defunct associations from the public register on the same day, noting who their legal successor is, and in the case of a merger
a) with the merger, the successor association will note the effective date of the merger and the names, addresses and identifying information of the associations that merged with the successor association, and any other changes to the successor association, if they occurred as a result of the merger,
b) by merging, registers the successor association and notes the names, addresses and identifying information of the associations that are its legal predecessors.
§ 285
Once the merger has been registered in the public register, the merger agreement cannot be changed or cancelled.
§ 286
By registering the merger, the members of the defunct association become members of the successor association.
§ 287
(1) If the participating associations do not submit a proposal to register the merger within six months from the date the merger agreement was concluded, the participating association that was ready to submit the proposal may withdraw from the merger agreement. If even one party withdraws from the contract, the obligation of all parties established by the contract ceases.
(2) If the participating associations do not submit a proposal for registration of the merger within one year from the date on which the merger agreement was concluded, it is valid that all participating associations have withdrawn from the agreement.
(3) Jointly and separately with the association that caused the merger registration proposal not to be submitted on time, the members of its statutory body will compensate other associations for the resulting damage, except for those who prove that they made sufficient efforts to submit the proposal on time.
Division of the association
§ 288
(1) In the case of division by merger, the participating associations conclude a division agreement.
(2) The distribution agreement contains at least
a) information on the name, seat and identifying information of the participating associations, indicating which association is the one in liquidation and which are the successors,
b) determining which assets and debts of the defunct association are taken over by the successor associations,
c) determination of which employees of the terminating association become employees of individual successor associations,
d) Day D.
(3) If, as a result of the division by merger, the statutes of any of the successor associations are changed, the division agreement also contains an agreement on this change.
(4) Unless otherwise stipulated in the division agreement, each member of the terminating association acquires membership in all successor associations on the effective date of the division.
§ 289
(1) In the event of a division with the establishment of new associations, the divided association prepares a division project.
(2) The project contains at least
a) information on the name, seat and identifying information of the participating associations, indicating which association is the one in liquidation and which are the successors,
b) determining which assets and debts of the defunct association are taken over by the successor associations,
c) determination of which employees of the terminating association become employees of individual successor associations,
d) draft articles of association of successor associations,
e) Day D.
(3) Unless the division project stipulates otherwise, each member of the terminating association acquires membership in all successor associations on the effective date of the division.
§ 290
(1) If it is not clear from the demerger agreement or the demerger project what property is transferred from the divided association to the successor associations, the successor associations are co-owners of such property.
(2) If it is not clear from the demerger agreement or the demerger project which debts are transferred from the divided association to the successor associations, it applies that the successor associations are jointly and severally liable for these debts.
§ 291
(1) In the event of division by merger, the provisions on merger shall apply mutatis mutandis.
(2) In the case of a division with the establishment of new associations, the statutory body of the divided association shall, together with the division project, prepare a report explaining the economic and legal reasons and consequences of the division. The report does not have to be drawn up if all members of the association are members of its statutory body, or if all members of the association agree to it.
§ 292
(1) The meeting of the members, to which the contract of division or the project of division will be presented for approval, must be announced by the person convening it at least thirty days before its holding.
(2) Within the period specified in paragraph 1, the association shall make available to all members at its registered office a report of the statutory body explaining the economic and legal reasons and consequences of the division, if its preparation is necessary. The report must include,
a) if it is a division by merger, a proposal for a division agreement, the articles of association of the successor association and a statement of assets and liabilities of all participating associations no older than six months, or
b) if it is a division with the establishment of new associations, the division project, the statement of assets and liabilities of the divided association, as well as the opening balance sheets and draft articles of association of the successor associations.
§ 293
(1) At least thirty days before the members' meeting, the divided association shall publish a notice in which it will state which association is affected by the division and which associations will become its successor associations. In the notification, the divided association also informs the creditors of their right under Section 301.
(2) If the association is not a recipient of performance from the public budget, if it has a negligible number of creditors and if the total amount of the debt is negligible, it is sufficient if it delivers a notice to known creditors.
§ 294
(1) The division agreement is approved by the member meetings of the participating associations. The provisions of § 282 shall be applied mutatis mutandis.
(2) The division project is approved by the membership meeting of the divided association.
(3) The membership meeting can only approve or reject the division agreement or the division project.
§ 295
(1) The divided association submits a proposal to register the division in the public register. If it is a division by merger, both the divided and successor associations submit a joint proposal.
(2) On the basis of the proposal, the competent authority shall register the division by deleting the defunct association from the public register on the same day, noting who is its legal successor, and upon division
a) by merger, the successor association will note the effective date of the division by merger and the name, registered office address and identifying information of the association that merged with the successor association and any other changes in the successor association, if they occurred as a result of the division,
b) with the establishment of new associations, he registers the successor associations and notes the name, registered office address and identifying information of the association, which is its legal predecessor.
§ 296
After the division has been registered in the public register, neither the division agreement nor the division project can be changed or cancelled.
§ 297
(1) If, during the division by merger, the participating associations do not submit a proposal to register the division within six months from the date on which the division agreement was concluded, the participating association that was ready to submit the proposal may withdraw from the division agreement. If even one party withdraws from the contract, the obligations of all parties established by the contract cease.
(2) If, during division by merger, the participating associations do not submit a proposal to register the division within one year from the date on which the division agreement was concluded, it is valid that all participating associations have withdrawn from the agreement.
(3) Jointly and separately with the association that caused the proposal to register the division not to be submitted on time, the members of its statutory body shall compensate other associations for the resulting damage, except for those who prove that they made sufficient efforts to submit the proposal on time.
§ 298
If the partitioned association fails to submit a proposal to register the partition within one year of the date on which the partition decision was adopted during the partition with the establishment of new associations, the partition decision is canceled by the futile expiration of the term.
§ 299
(1) Each of the successor associations is jointly liable with the other successor associations for debts transferred from the divided association to the next successor association.
(2) If the divided association has its assets appraised by an expert appointed by the court in accordance with another law, including a separate valuation of the assets transferred to the individual successor associations, and fulfills the obligation to publish pursuant to Section 269, each successor association is liable for debts pursuant to paragraph 1 only up to of the net worth acquired by the division.
(3) Creditors who have received security pursuant to Section 1 cannot exercise the right of guarantee under paragraphs 2 and 300.
§ 300
If a creditor of a participating association submits a claim within six months of the date on which the registration of division became effective for him, he has the right to sufficient security if he proves that the collectability of the claim will deteriorate. If the creditor proves that, as a result of the division, the collectability of the claim will deteriorate significantly, he has the right to sufficient security even before the division is entered in the public register.
§ 301
(1) Anyone whose legal interests are affected by the division has the right to be informed by any of the participating associations within one month of the delivery of the request what assets are transferred to the individual successor associations as a result of the division.
(2) If the debtor of the defunct association does not receive notification of who is his creditor after the division of the association, he can pay any of the successor associations. If the creditors of the defunct association do not receive notification of who is their debtor after the division of the association, they may demand payment from any of the successor associations.
§ 302
If the articles of association determine that the merger or division of the association is decided by a body other than the members' meeting, the provisions on the members' meeting from the provisions on the merger or division of the association shall be applied proportionately to the decisions of such body.
Section 3Foundation
Subsection 1Generally about foundations
§ 303
A foundation is a legal entity created by assets earmarked for a specific purpose. Its activity is tied to the purpose for which it was established.
§ 304
The foundation is established by founding legal proceedings or by law, in which its property security and purpose must also be determined.
§ 305
The foundation's internal conditions are governed by its statute.
Subsection 2Foundation
§ 306
(1) The founder establishes a foundation to permanently serve a socially or economically useful purpose. The purpose of the foundation can be public benefit, if it consists in supporting the general welfare, or charitable, if it consists in supporting a certain circle of persons determined individually or otherwise.
(2) It is prohibited to establish a foundation for the purpose of supporting political parties and movements or otherwise participating in their activities. It is prohibited to establish a foundation serving exclusively profit-making purposes. If the foundation fulfills a prohibited purpose, the court will cancel it even without a motion and order its liquidation.
§ 307
(1) A foundation can run a business if the business is merely a secondary activity and the proceeds of the business serve only to support its purpose; however, the foundation may not do business if the founder has excluded it in the foundation charter. Under the same conditions, the foundation can take over the management of a commercial company.
(2) The foundation may not be an unlimited liability partner of a business company.
§ 308
(1) The name of the foundation contains the word "foundation".
(2) A designation indicating its purpose is a regular part of the foundation's name.
Establishment of a foundation
§ 309
(1) A foundation is established by a foundation deed, which can be a foundation deed or an acquisition in the event of death.
(2) The charter of the foundation is drawn up by one or more persons.
(3) If more than one person is on the side of the founder of the foundation, they are considered to be the only founder and must act unanimously in the affairs of the foundation; if any of these persons refuses to grant consent without a serious reason, the court shall replace it by its decision at the request of any of the other founding persons.
(4) The foundation deed requires the form of a public deed.
§ 310
The founding charter of the foundation contains at least
a) name and seat of the foundation,
b) the name of the founder and his place of residence or registered office,
c) defining the purpose for which the foundation is established,
d) information on the amount of each founder's deposit,
e) information on the amount of foundation capital,
f) the number of members of the board of directors as well as the names and residences of its first members and information on how the members of the board of directors act on behalf of the foundation,
g) the number of members of the supervisory board as well as the names and residences of its first members, or, if the supervisory board is not established, the name and residence of the first auditor,
h) designation of deposit manager a
i) the conditions for the provision of foundation contributions, or the range of persons to whom they can be provided, or the range of activities that the foundation can carry out due to its purpose, or the determination that these requirements are stipulated by the foundation's statute.
§ 311
(1) When a foundation is established by acquisition in the event of death, a contribution is made to the foundation by naming the foundation as an heir or ordering a bequest. In such a case, the establishment of the foundation takes effect upon the death of the testator.
(2) If the endowment deed is included in the acquisition in case of death, it contains at least
a) foundation name,
b) defining the purpose for which the foundation is established,
c) information on the amount of the deposit,
d) information on the amount of foundation capital a
e) the conditions for the provision of foundation contributions, or the range of persons to whom they can be provided, or the determination that these requirements are determined by the statute of the foundation.
§ 312
(1) If the acquisition in the event of death does not contain other requirements specified in § 310, the person designated in the acquisition, otherwise the executor of the will, will decide on them; this also applies if the testator appointed members of the board of directors or the supervisory board and one of them dies, is ineligible to hold the position or refuses it.
(2) The decision under paragraph 1 requires the form of a public document.
§ 313
(1) If the foundation deed does not specify the object of the deposit, the deposit obligation is fulfilled in money.
(2) If the foundation deed has determined that the deposit obligation will be fulfilled by bringing in a non-monetary object, and if this is not possible or if the value of the deposit does not reach the above specified in the foundation document, the depositor is considered to make up the difference in money.
§ 314Statute of the foundation
(1) The statute of the foundation will be amended at least
a) manner of conduct of the foundation's bodies and
b) the conditions for providing foundation contributions, possibly also the range of persons to whom they can be provided.
(2) If the founder does not issue the statute of the foundation together with the foundation charter, it will be issued by the board of directors within one month from the day of the foundation's establishment, after the prior approval of the supervisory board. If the foundation charter does not exclude it, the board of directors decides on changes to the statute after the prior approval of the supervisory board.
(3) The foundation publishes the statute by depositing it in the collection of documents. Anyone can consult the statute in the public register and obtain extracts, descriptions or copies from it. The same right can also be exercised at the foundation's headquarters.
§ 315Creation of the foundation
(1) The foundation is created on the day of registration in the public register.
(2) The proposal for registration of the foundation in the public register is submitted by the founder; if this is not possible and if the founder has not specified otherwise, the board of directors submits a proposal for registration on behalf of the foundation.
§ 316Change of foundation seat
If the foundation's charter does not exclude it, the board of directors may change the foundation's registered office after the previous statement of the supervisory board. The decision to relocate the foundation's seat abroad requires court approval; the court will not approve the relocation of the registered office if there is no serious reason for this or if the change of registered office would endanger the legitimate interests of persons to whom foundation contributions are to be provided.
Amendment of the foundation charter
§ 317
After the establishment of the foundation, the foundation charter can be changed to the extent and in the manner that the founder expressly reserved for himself or one of the foundation's bodies in the foundation charter.
§ 318
(1) If, after the establishment of the foundation, circumstances change to such an extent that they create a reasonable need for the foundation to change its internal conditions, the founder may change the foundation charter, even if he did not reserve such a right in the foundation charter; for the change to be valid, it is required that the board of directors agrees with it and that the change does not affect the rights of third parties.
(2) The foundation will publish the change in the foundation charter; the change becomes effective three months after the date of publication. If, within this period, the person who claims that his rights were affected by the amendment of the foundation charter proposes to the court to decide on the invalidity of the amendment, the court may decide that the effectiveness of the amendment to the foundation charter is postponed until its decision.
(3) The provisions of paragraphs 1 and 2 shall not apply if the amendment of the foundation deed should concern its part, which the founder has determined in the foundation deed to be unalterable.
§ 319
(1) If the founder is no longer there and if the circumstances change to such an extent that they create a reasonable need to change its internal conditions in the interest of the foundation, the court can decide on the amendment of the foundation charter at the foundation's proposal; the board of directors must agree to the submission of the proposal.
(2) The court will grant the motion if the proposed amendment to the foundation charter does not affect the rights of third parties; at the same time, the intention of the founder evident from the foundation deed must be investigated as much as possible and the conditions that the founder may have specified for such a case in the foundation deed must be met.
(3) When deciding on the amendment of the foundation charter, the court takes into account the opinion of the supervisory board and takes into account the interests of third parties worthy of legal protection.
§ 320
If the founder explicitly stated in the foundation deed that it is unchangeable or that a certain part of it cannot be changed, it cannot be changed even by a court decision.
Special provisions on changing the purpose of the foundation
§ 321
(1) If the foundation charter does not establish the right to change the purpose of the foundation by the founder or any body of the foundation, this purpose can be changed by a court upon a proposal of the foundation approved by the administrative and supervisory board. However, if the founder or the person specified in the foundation document does not agree to such a change, the court will reject the proposal.
(2) The foundation will publish a notice of the proposed change without undue delay after the submission of the proposal. Anyone who has a legal interest in it can object to the proposal in court within a period of one month from the day the notice was published.
§ 322
If the achievement of the purpose of the foundation is impossible or difficult to achieve due to reasons unknown to the founder or unforeseeable for him, the court shall, at the proposal of the founder or a person who has a legal interest in it, replace the current purpose of the foundation with a similar purpose, unless the foundation document specifies otherwise.
§ 323
If the founder is no longer there and if there is no person whom the founder may have established the right to agree to change the purpose of the foundation or refuse such consent, the court will take into account the known intentions and wishes of the founder when deciding on the change of the purpose of the foundation, even if they are not from the foundation document apparently.
§ 324
Only a court can decide on changing the purpose of a foundation from a public benefit to a charitable one, if there is a particularly serious reason for this and the foundation charter does not exclude it.
§ 325
When the purpose of the foundation is changed, the gifts made in favor of the original purpose and the income from them must be used to provide the foundation contributions according to the original purpose, unless the donor shows a different will.
§ 326
If the purpose of the foundation is changed, the court can simultaneously decide, even without a proposal, to what extent and for how long the foundation will use the income from the foundation capital to provide foundation contributions in accordance with the original purpose. This scope and period shall be established whenever it is required by the fair interest of persons designated as recipients of foundation contributions due to the original purpose of the foundation. If the court changes the purpose of the foundation from public benefit to charitable and if it does not decide on this scope and period, the foundation shall use the proceeds of four fifths to provide foundation contributions in accordance with the original purpose for a period of five years from the date on which the change was made. became effective.
Contributions to the foundation
§ 327
(1) The amount of a deposit with a non-monetary object cannot be determined by a higher amount than the value of the object of the deposit determined by the expert's opinion.
(2) If the object of the deposit to the foundation is non-monetary, it must meet the assumption of permanent income and must not serve as security.
§ 328
(1) If the object of the deposit is an investment security or a money market instrument according to the law governing business on the capital market, its value may also be determined by the weighted average of the prices at which trades were made with this security or instrument on the regulated market during the six months prior to repayment deposit.
(2) Paragraph 1 does not apply if the value of the object of the deposit, determined according to paragraph 1, is affected by exceptional circumstances that would significantly change it on the date of fulfillment of the deposit obligation.
§ 329
(1) If the object of the deposit is something other than an investment security or a money market instrument according to the law regulating business on the capital market, the value can also be determined
a) the market value of the item determined by a generally recognized independent expert using generally recognized valuation procedures and principles no earlier than six months before the deposit obligation is fulfilled, or
b) higher valuation of the item in the financial statements for the accounting period immediately preceding the formation of the deposit obligation, if this item is valued at fair value according to another legal regulation and if the auditor verified the financial statements with an unqualified opinion.
(2) Paragraph 1 shall not apply if new circumstances have arisen that could significantly change the value of the deposit as of the date of fulfillment of the deposit obligation.
§ 330
(1) Before the establishment of the foundation, the deposit obligation is fulfilled at least so that the total amount of deposits corresponds to at least CZK 500.
(2) Deposits to the foundation will be received by the person designated by the foundation deed as deposit manager before its establishment. If his function ceases, the founder, as the case may be, the executor of the will or another authorized person shall appoint a new deposit manager without undue delay; if this is not possible, a new deposit manager will be appointed by the foundation's board of directors. The provisions on the rights and obligations of members of bodies of legal entities apply similarly to the rights and obligations of the administrator.
§ 331
(1) The deposit obligation is fulfilled by handing over the object of the deposit to the deposit manager. The foundation acquires the ownership right to the object of the deposit on the day of its creation, however, if the law binds the acquisition of the ownership right to registration in the public register, the foundation acquires ownership of the object of the deposit only with this registration.
(2) If the object of the deposit is monetary, the deposit administrator deposits it in a special account at a bank or savings and credit cooperative, which he establishes for the foundation and in its name. The person who maintains the account will not allow payouts and payments from the account balance until the foundation is established, unless it is proven that the foundation was not validly established; if the foundation was established by acquisition in the event of death, a court is required to decide on the invalidity of the foundation.
(3) If the subject of the deposit is an item entered in the public register, the depositor shall hand over to the deposit manager a declaration of the deposit; after the establishment of the foundation, its ownership right will be entered in the public register on the basis of this declaration. The depositor's signature is required to be officially verified on the statement.
§ 332
The deposit administrator will confirm in writing to the person who proposes to enter the foundation in the public register, who fulfilled the deposit obligation, when it happened, what the object of the deposit is and what the total amount of the deposits is. If the deposit manager confirms a higher scope of performance than corresponds to the reality, he guarantees up to the amount of the difference to the creditors for the foundation's debts for a period of five years from the establishment of the foundation.
§ 333
(1) The deposit manager hands over the object of the deposit to the foundation without undue delay after its creation.
(2) If the foundation is not established, the deposit manager will return the object of the deposit to the person who repaid or contributed it. Legal actions taken by the administrator during the administration of the object also bind this person.
§ 334
(1) After the establishment of the foundation, the foundation capital can be multiplied by foundation donations or by a decision to increase the foundation capital.
(2) If the non-monetary object of the donation fulfills the assumption of permanent income and does not serve as security, it is considered that the donation increases the foundation principal.
Foundation property and foundation capital
§ 335
The assets of the foundation consist of the foundation capital and other assets.
§ 336
(1) The foundation principal consists of a collection of objects of contributions to the foundation, or also of foundation donations.
(2) The foundation principal must have a total value corresponding to at least CZK 500.
§ 337
The monetary expression of the foundation capital is the foundation capital. The amount of the foundation capital is entered in the public register.
§ 338
(1) The foundation uses its property in accordance with the purpose stated in the foundation deed and statute and under the conditions specified there to provide foundation contributions, to ensure its own activities to fulfill its purpose and to cover the costs of the foundation capital appreciation and the costs of its own administration.
(2) A legal action whereby the foundation assumes unlimited liability for another person is not taken into account.
§ 339
(1) What constitutes the foundation principal cannot be mortgaged or otherwise used to secure a debt. This does not apply if the foundation operates a business plant, to the extent necessary for its smooth operation.
(2) Something from the foundation's principal can be alienated only if it does not contradict the will of the person who made the donation to the foundation or fulfilled the deposit obligation. Otherwise, something from the foundation principal can be alienated only if this occurs for consideration included in the foundation principal or in the event that the need for alienation was caused by such a change in circumstances that could not be foreseen and otherwise cannot be dealt with even with the care of a proper householder.
§ 340
The foundation handles the foundation capital with the care that this law stipulates for the management of other people's property. If the beneficiary's consent is required for a certain legal act according to the provisions on the simple administration of another's property, the prior consent of the person specified in the foundation deed is required for such legal act; if this person is not designated, the prior approval of the supervisory board is required.
§ 341
(1) If the foundation's capital or the turnover of the foundation in the past accounting period reaches an amount at least ten times higher than that stipulated in Section 330, paragraph 1, the regular financial statements, extraordinary financial statements and consolidated financial statements are subject to verification by an auditor.
(2) The financial statements are subject to verification by the auditor even if, based on them, a decision is made to increase or decrease the foundation's capital, or to transform the foundation.
Increase in endowment capital
§ 342
(1) After the approval of the financial statements, the board of directors may, within one year from the date on which the data from which the financial statements were compiled, were ascertained, decide on the multiplication of the foundation principal and the increase of the foundation capital,
a) if the increase in the foundation capital is not higher than the difference between the amount of the foundation's own financing resources reported on the liabilities side of the balance sheet and the foundation capital, and
b) if own resources are not used to increase the foundation's capital, which are purpose-bound and whose purpose the foundation is not authorized to change.
(2) The decision to multiply the foundation capital and increase the foundation capital contains the amount by which the foundation capital is increased and the designation of the source from which the foundation capital is increased, according to the structure of the foundation's own sources of financing of the assets in the financial statements.
(3) If the foundation discovers a reduction in its own resources from any subsequent financial statement, the decision to increase the foundation's capital is based on this financial statement.
§ 343
(1) If the foundation increases the foundation capital by the amount of the donation, the subject of which is an item eligible to be a contribution to the foundation, the scope of the increase in the foundation capital must not be higher than its ascertained value.
(2) The decision to increase the endowment capital contains the amount by which the endowment capital is increased and a description of the item by which the endowment capital is increased, along with information on the value of the item and the manner in which this value was determined.
Reduction of endowment capital
§ 344
(1) If the foundation charter does not prohibit it, the foundation can reduce the foundation capital by reducing the foundation capital if it is required in the interest of more economical fulfillment of its purpose. The endowment capital can be reduced by a maximum of one-fifth of the amount of the endowment capital over the course of five years. By reducing the foundation capital, it is not possible to directly or indirectly cover the costs of the foundation's administration.
(2) The decision to reduce the endowment capital contains the amount by which the endowment capital is reduced and the reason for the reduction.
§ 345
It is prohibited to reduce the foundation capital to an amount lower than CZK 500.
§ 346
If the foundation forfeits any part of the foundation capital or if its value drops significantly, the foundation shall replenish the foundation capital without unnecessary delay; if this is not possible, it will reduce the foundation capital to the extent corresponding to the loss.
Common provisions
Associated fund
§ 349
(1) By contract, the foundation can be entrusted with management as an associated fund with property eligible to be the subject of a deposit to the foundation and entrust the foundation with the use of this property for the agreed purpose, if it is related to the mission of the foundation; the use must not consist of supporting a political party or political movement.
(2) The contract requires a written form.
§ 350
If it is agreed that the foundation will manage an associated fund under a special designation, the designation must contain the words "associated fund". The designation must be indicated simultaneously with the name of the foundation that manages the associated fund.
§ 351
It is considered that the foundation performs the simple management of the property in the associated fund and that it performs it for a fee in the amount that is usually required in similar cases.
§ 352
(1) The management of the associated fund gives rise to rights and obligations only of the managing foundation. Assets in the associated fund are registered by the foundation separately from its own assets.
(2) If the foundation is dissolved, the liquidator will deal with the associated fund in such a way that its legal nature and purpose are still preserved.
Foundation contribution
§ 353
(1) The foundation may not provide a foundation contribution to a person who is a member of its body or who is an employee of the foundation, or to a person close to them.
(2) If the reasons for this are not worthy of special consideration, caused by a change in circumstances on the part of the founder, the foundation may not provide a foundation contribution to its founder; if there are such reasons, the board of directors will decide after discussion with the supervisory board or the auditor. This also applies to the provision of a foundation contribution to a person close to the founder, unless the foundation was established to support people close to the founder.
§ 354
Whoever has received a foundation contribution may only use it in accordance with the agreed conditions; he will show the foundation how he used it on request. Whoever used the foundation contribution in violation of the agreed conditions shall return it to the foundation as unjustified enrichment.
§ 355
(1) The foundation may not provide foundation contributions if the amount of the foundation's own financing resources reported on the liabilities side of the balance sheet is lower than the amount of the foundation capital adjusted according to paragraph 2, or if it would be lower than the adjusted amount of the foundation capital as a result of the provision of foundation contributions.
(2) They are added to the amount of the foundation capital for the purposes specified in paragraph 1
a) an increase in the endowment capital as a result of the adoption of the endowment capital or a decision, even if it has not yet been entered in the public register, and
b) own resources that are purpose-bound and whose purpose the foundation is not authorized to change.
(3) The provisions of paragraphs 1 and 2 do not apply in the case of contributions from donations intended for this purpose by the donor.
§ 356
A person who has accepted in good faith a foundation contribution provided in violation of § 355 is not obliged to return it.
§ 357Administration costs
The foundation accounts separately for foundation contributions, for other activities to fulfill the purpose of the foundation, and for the costs of its administration.
Annual Report
§ 358
(1) The foundation will compile the annual report by the end of the sixth month from the end of the previous accounting period.
(2) The annual report contains financial statements and an overview of all the activities of the foundation, including an evaluation of this activity.
(3) In the annual report, the foundation shall state at least
a) overview of own assets and liabilities,
b) for individual foundation donations, an overview of persons who provided a foundation donation worth more than CZK 10,
c) an overview of how the foundation's assets were used,
d) an overview of persons who received a foundation contribution worth more than CZK 10,
e) an evaluation of whether the foundation has complied with the rules for providing foundation contributions in accordance with Sections 353 to 356 in its management, and an overview of the costs of its own administration and
f) evaluation of the basic data of the annual financial statements and the auditor's report, if the foundation is required to have the financial statements certified by an auditor.
(4) If, after publication of the report, a fact comes to light that justifies the correction of the report, the foundation will carry out and publish the correction without undue delay.
§ 359
(1) If the donor requests it, the foundation will not include the donor's information in the annual report. The recipient of a foundation contribution has the same right. When providing a foundation contribution worth more than CZK 10, only a person who received the foundation contribution for humanitarian reasons, especially for health reasons, can request to remain anonymous.
(2) The Foundation will maintain anonymity if the authorized persons deliver the request to it before the approval of the annual report. However, a person who received a foundation contribution for humanitarian reasons can exercise his right to anonymity at any time, if the foundation did not inform him of his right when the contribution was made; the instruction is deemed not to have been given.
§ 360
(1) The foundation will publish the annual report within thirty days of its approval by the board of directors and will also make it available at its headquarters. If the foundation is not established as a non-profit foundation, it is sufficient to make the annual report available at its registered office.
(2) If the board of directors has not approved the annual report, the foundation shall publish the annual report in the manner specified in paragraph 1 no later than the end of the immediately following accounting period and state that the annual report was not approved and for what reasons.
§ 361
Anyone can view the annual report in the public register and make extracts, descriptions or copies of it. The same right can also be exercised at the foundation's headquarters.
Board of Directors
§ 362
The Board of Trustees is the foundation's statutory body; has at least three members.
§ 363
If the foundation charter does not specify other restrictions, a person who
a) is a member of the foundation's supervisory board,
b) is employed by the foundation, or
c) is not in good standing in relation to the purpose of the foundation.
§ 364
If the foundation charter does not specify another term of office for a member of the board of directors, it is five years. If the foundation charter does not exclude it, a member of the board of directors can be elected repeatedly.
§ 365
(1) If the foundation charter does not specify otherwise, the board of directors elects and dismisses its members itself.
(2) The foundation charter may stipulate that a certain number of members of the board of directors must be elected from candidates proposed to the board of directors by persons designated by the foundation charter, or by persons designated in the manner specified therein.
§ 366
If the foundation charter does not provide for other reasons, the board of directors shall remove from office a member who has seriously or repeatedly violated the foundation charter or statute, or who has violated the law in a way that clearly damages the foundation's reputation. If he does not do so within one month from the day on which he became aware of the reason for the appeal, but no later than six months from the day on which this reason arose, the court will recall the member of the board of directors from his position at the proposal of a person who certifies a legal interest; the right to request the removal of a member of the board of directors expires if it has not been exercised within a year from the day when the reason for removal arose.
§ 367
(1) If membership in the board of directors ceases to exist, the board of directors shall elect a new member within three months. If he does not do so, the court appoints a new member of the board of directors on the proposal of the supervisory board or on the proposal of a person who certifies a legal interest, for the period until the board of directors elects a new member.
(2) The court appoints a new member of the board of directors even without a proposal, if the board of directors is unable to resolve on a new election due to a decrease in the number of its members.
Supervisory Board
§ 368
(1) The supervisory board is the control and revision body of the foundation; has at least three members.
(2) A supervisory board must be established if the foundation's capital reaches an amount at least ten times higher than that stipulated in Section 330, paragraph 1.
§ 369
If the foundation charter does not specify other restrictions, a person who
a) is a member of the board of directors or a liquidator,
b) is employed by the foundation, or
c) is not in good standing in relation to the purpose of the foundation.
§ 370
(1) If the foundation charter or, within the limits of its designation, the foundation's statute does not entrust the supervisory board with additional powers, the supervisory board
a) supervises whether the board of directors exercises its powers in accordance with the law and in accordance with the foundation charter and statute,
b) checks the fulfillment of the conditions set for the provision of foundation contributions,
c) notifies the board of directors of identified deficiencies and submits proposals for their elimination,
d) controls how the accounting is kept and reviews the annual, extraordinary and consolidated financial statements,
e) comments on the annual report and
f) at least once a year, it submits a written report on its control activities to the board of directors.
(2) The supervisory board represents the foundation against a member of the board of trustees, as well as in any matter where the interest of members of the board of trustees conflicts with the interests of the foundation. For this purpose, the supervisory board will appoint one of its members.
§ 371
(1) The Supervisory Board shall convene a meeting of the Board of Directors, unless the Chairman of the Board of Directors does so on the proposal of the Supervisory Board.
(2) Within the scope of the supervisory board's powers, its authorized member may inspect the foundation's documents and request explanations on individual matters from members of other foundation bodies or its employees.
§ 372
Unless the foundation charter specifies otherwise, the supervisory board itself elects and dismisses its members. The provisions on the board of directors apply similarly to the election and dismissal of members of the supervisory board and to their term of office.
Auditor
§ 373
(1) If the supervisory board is not established, the auditor exercises its powers.
(2) The charter of the foundation or the statute of the foundation may stipulate that the function of auditor will be performed by a legal entity whose subject of activity enables the performance of control and revision activities, and that it will also perform this function for an indefinite period of time.
§ 374
(1) § 369 applies similarly to eligibility to be an auditor. If the auditor is a legal entity, its rights and obligations associated with the function of auditor can be exercised by its representative who meets the conditions according to the first sentence.
(2) If the foundation charter does not specify a shorter period, the auditor's term of office is five years. The auditor can be elected repeatedly, if the foundation charter does not exclude it.
§ 375
(1) If the foundation charter does not specify another method, the board of directors elects and dismisses the auditor.
(2) If the foundation charter does not specify other reasons, the board of directors will dismiss an auditor who has seriously or repeatedly violated the foundation charter or statute, or who has violated the law in a way that clearly damages the foundation's reputation. If he does not do so within one month from the day on which he became aware of the reason for the appeal, but no later than six months from the day on which this reason arose, the court will recall the auditor at the proposal of a person who certifies a legal interest; the right to demand the revocation of the auditor expires if it has not been exercised within a year from the day when the reason for the revocation arose.
Abolition of the foundation with liquidation
§ 376
If the purpose for which the foundation was established has been achieved, the foundation is dissolved and the board of directors elects a liquidator.
§ 377
(1) The court will cancel the foundation with liquidation at the request of a person who has a legal interest in it, or even without a request in the event that
a) the foundation carries out activities prohibited in § 145 or acts in violation of § 307,
b) the foundation becomes an unlimited liability partner of the business company,
c) the foundation seriously or repeatedly violates the prohibition to provide a foundation contribution to a person specified in § 353,
d) the foundation does not provide foundation contributions for more than two years without a serious reason for doing so,
e) the foundation disposes of the foundation capital in violation of § 339,
f) the value of the foundation principal decreases below CZK 500, and that this state lasts for more than one year from the end of the accounting period in which the decrease in the value of the foundation principal occurred,
g) the endowment principal does not yield any income for a period longer than two years, or
h) it is not permanently possible for the foundation to continue to fulfill its purpose.
(2) This provision does not affect § 172.
§ 378
(1) The liquidator will monetize the liquidation assets to the extent necessary to settle the foundation's debts. He will dispose of the liquidation balance according to the foundation deed.
(2) If the charter of a non-profit foundation specifies that the liquidation balance is to be used for purposes other than non-profit purposes, this is not taken into account.
§ 379
(1) If the foundation deed does not specify how the liquidation balance should be disposed of, the liquidator will offer it to a foundation with a similar purpose. However, if there is a serious reason for this, the administrative board can decide that the liquidation balance will be preferentially offered to the municipality, region or state.
(2) If it is not possible to offer the liquidation balance to a foundation with a similar purpose, or if the offer made in accordance with paragraph 1 is rejected, the liquidator will offer the liquidation balance to the municipality in whose territory the foundation has its seat. If the municipality does not accept the offer even within two months from the effective date, the liquidation balance is acquired by the region in whose territory the foundation has its seat.
§ 380
If a municipality, region or state receives the liquidation balance, it will use the liquidation balance only for a publicly beneficial purpose.
§ 381
If the foundation received earmarked performance from the public budget, the provisions of § 378 do not apply and the liquidator disposes of the relevant part of the liquidation balance according to the decision of the competent authority.
Foundation transformation
§ 382
(1) A foundation can be transformed by its merger by merging with another foundation or with an endowment fund, or by changing its legal form to an endowment fund.
(2) The foundation can be merged with another foundation or with an endowment fund, if the foundation charter does not exclude this and the persons involved serve the same or a similar purpose. When a foundation is merged with an endowment fund, the successor must be the foundation.
§ 383
(1) The merger agreement contains at least
a) information on the name, address and identifying information of the participating persons, indicating which of them is terminating and which successor,
b) determination of the structure in which the successor entity takes over the components of the equity capital and debt capital of the liquidating entity, which are not a liability,
c) the amount of the foundation capital, if the successor is a foundation,
d) an agreement to change the status of the successor person, if such a change occurs as a result of the merger,
e) Day D.
(2) If foundations merge, the amount of foundation capital according to paragraph 1 letter c) given by the sum of the foundation capitals of the merging foundations. When a foundation fund is merged with a foundation as a successor entity, the foundation capital may be increased under the conditions specified in § 342; in such a case, the merger agreement must contain the requirements listed in Section 342, paragraph 2.
(3) The merger agreement requires the form of a public document.
§ 384
(1) Before concluding the merger agreement, the parties involved will make their accounts available to each other and provide other information and documents necessary for the assessment of the legal and economic consequences of the merger.
(2) Anyone who becomes familiar with the data pursuant to paragraph 1 shall maintain confidentiality about facts that are prohibited by law from being disclosed or whose disclosure could cause serious harm to the person involved.
§ 385
The supervisory boards or auditors of the participating parties review the accounting of each of the participating parties and compile a report on the facts that are the subject of their accounting, including an opinion on the draft merger agreement and the economic consequences of the merger; the report can also be compiled as a common one for all involved persons.
§ 386
(1) If a report is drawn up according to § 385, they will decide on the merger of the board of directors of the involved persons. The board meeting must be announced at least thirty days before it takes place; within this period it will be made available to each member of the board of directors
a) draft merger agreement,
b) if the articles of association of the successor entity are to be changed as a result of the merger, its articles of association,
c) financial statements of all parties involved; if the financial statement is compiled from data as of the date from which more than six months have passed since the date of drafting the draft merger agreement, also the interim financial statement of the relevant person,
d) opening balance sheet of successor entity a
e) report under § 385.
(2) The board of directors can only accept or reject the draft merger agreement.
(3) If the meeting of the boards of directors of the participating persons is convened as a joint one, the individual boards of directors vote separately on the draft merger agreement. However, if the members of the bodies of the successor person are elected after the agreement is approved, the boards of directors of the participating persons may decide to vote on these members together.
§ 387
(1) The parties involved shall publish a joint notice at least thirty days before the meeting of the board of directors, in which they will indicate which persons are affected by the merger and which of them will become the successor person.
(2) If the creditor of the person involved registers a claim within six months from the date on which the registration of the merger became effective for him, he has the right to sufficient security if he proves that the collectability of the claim will deteriorate. If the creditor proves that, as a result of the merger, the collectability of the claim will deteriorate in a significant way, he has the right to sufficient security even before the division is entered in the public register.
§ 388
Only an interested party, a member of the board of directors, a member of the supervisory board or an auditor has the right to claim the invalidity of the merger agreement; this right expires if the proposal is not submitted within three months from the date on which the board meeting was held.
§ 389
(1) The proposal to register the merger in the public register is submitted jointly by all the parties involved; the proposal will also be signed by the members of the statutory body of the successor person.
(2) On the basis of the proposal, the merger is registered in such a way that, on the same day, the disappearing persons are deleted from the public register, noting who their legal successor is, and for the successor person, the effective date of the merger and the names, addresses and identifying information of the persons who are with the successor person are indicated merged, and any other changes in the successor person, if they occurred as a result of the merger.
§ 390
(1) If the parties involved do not submit a proposal for registration of the merger within six months from the date on which the merger agreement was concluded, any of those parties who were ready to submit the proposal may withdraw from the agreement. If even one party withdraws from the contract, the obligations of all parties established by the contract cease.
(2) If the parties involved do not submit a proposal to register the merger within one year from the date on which the merger agreement was concluded, all parties involved have withdrawn from the agreement.
(3) Jointly and separately with the interested person who caused the merger registration proposal not to be submitted on time, the members of its statutory body shall compensate the other interested parties for the resulting damage, except for those who prove that they made sufficient efforts to submit the proposal in time.
Changing the legal form of the foundation to a foundation fund
§ 391
(1) If the foundation charter expressly allows it, the board of directors may, after a prior opinion of the supervisory board or the auditor, decide to change the legal form of the foundation to a foundation fund, but only if the value of the foundation principal has decreased below the amount specified in § 330, paragraph 1, for a non-transitional period .
(2) The decision to change the legal form must contain
a) designation of the foundation with name, registered office and identifying information,
b) the name of the endowment fund after the change of legal form,
c) Day D,
d) data on members of the foundation fund's bodies, which are entered in the public register.
(3) The decision requires the form of a public document.
§ 392
The decision to change the legal form becomes effective on the day of entry into the public register.
§ 393
(1) At least thirty days before the meeting of the board of directors, the foundation shall publish a notice of the intention to adopt a decision on the change of legal form.
(2) A creditor of the foundation who registers his claim within six months from the date on which the registration of the change in legal form became effective against third parties, may request the securing of his claim with sufficient security if, as a result of the change in legal form, its viability deteriorates. If the creditor proves that, as a result of the change in legal form, the recoverability of his claim will deteriorate in a significant way, he is entitled to sufficient security even before the change in legal form is registered in the public register.
Subsection 3endowment fund
§ 394
(1) The founder establishes an endowment fund for a socially or economically useful purpose.
(2) The name of the endowment fund must contain the words "endowment fund".
§ 395
An endowment fund is established by a deed of foundation or an acquisition in the event of death.
§ 396
(1) The founding legal proceedings contain at least
a) name and registered office of the endowment fund,
b) the name of the founder and his place of residence or registered office,
c) defining the purpose for which the endowment fund is established,
d) information on the amount of the deposit, or its non-monetary object,
e) the number of members of the board of directors as well as the names and residences of its first members and information on how the members of the board of directors act on behalf of the foundation fund,
f) the number of members of the supervisory board as well as the names and residences of its first members, or the name and residence of the first auditor,
g) designation of deposit manager a
h) conditions for providing contributions from the endowment fund's property or defining the range of activities that the endowment fund can carry out due to its purpose.
(2) If the endowment fund is established by acquisition in case of death and if the founder does not specify the method of appointing the first members of the administrative and supervisory board, or the first auditor, the executor of the will appoints them; otherwise, they are appointed by the court at the proposal of a person who certifies a legal interest in it.
§ 397Creation of an endowment fund
The endowment fund is created on the day of registration in the public register.
§ 398
(1) The endowment fund's assets consist of a collection created from deposits and donations, the object of which does not have to meet the assumption of permanent income. What is in the property of the endowment fund cannot be mortgaged or otherwise used to secure a debt; legal action that contradicts it is disregarded.
(2) The property of the endowment fund can be alienated if it is in accordance with the purpose of the endowment fund. It can also be used for an investment considered prudent.
(3) The endowment fund does not create endowment capital or endowment capital.
§ 399
(1) If this is expressly permitted by the founding legal proceedings, the board of directors may decide, after a prior opinion of the supervisory board or the auditor, to change the legal form of the endowment fund to a foundation. The decision to change the legal form must contain at least the designation of the endowment fund with the name, seat and identifying information and the requirements specified for the endowment deed.
(2) The decision requires the form of a public document.
§ 400
(1) At least thirty days before the meeting of the board of trustees, the endowment fund shall publish a notice of intention to change its legal form.
(2) A creditor of an endowment fund who registers his claim within six months from the date on which the registration of the change became effective against third parties may request the securing of his claim with sufficient security if the claimability of the claim deteriorates as a result of the change in legal form. If the creditor proves that, as a result of the change in legal form, the enforceability of his claim will deteriorate in a substantial way, he is entitled to sufficient security even before the change in legal form is registered in the public register.
§ 401
(1) If it is not permanently possible for the endowment fund to continue to fulfill its purpose, the board of directors decides on the termination of the endowment fund with liquidation and elects a liquidator.
(2) If the endowment fund does not fulfill the purpose for which it was established, the court will cancel it at the proposal of a person who certifies a legal interest in it, and will order its liquidation.
Section 4Institute
§ 402
The Institute is a legal entity established for the purpose of running a socially or economically useful activity using its personal and property component. The Institute runs activities, the results of which are equally available to everyone under predetermined conditions.
§ 403
If the institute operates a commercial plant or other secondary activity, the operation must not be detrimental to the quality, scope and availability of services provided within the main activity of the institute. The profit can only be used by the institute to support the activity for which it was founded and to cover the costs of its own administration.
§ 404Name of the institute
The name of the institute must contain the words "registered institute", but the abbreviation "z. at."
§ 405Establishment of the institute
(1) The institute is established by a deed of incorporation or an acquisition in the event of death. The founding legal proceedings contain at least
a) the name of the institute and its headquarters,
b) the purpose of the institute by defining the subject of its activity, possibly also the subject of its business,
c) information on the amount of the deposit, or its non-monetary object,
d) the number of members of the board of directors as well as the names and residences of its first members a
e) details of the internal organization of the institute, if it is not reserved by the regulation of the statute of the institute.
(2) If the founding legal proceedings establish a supervisory board, it shall state the number of members of the supervisory board and the names and residences of its first members.
§ 406
(1) The founder decides on changes to the founding legal act even during the duration of the institute.
(2) If the founder's decision-making is not possible, the person designated by the founder's legal action acquires his rights towards the institute to the extent specified therein, otherwise the board of directors acquires them; in such a case, however, prior approval of the court is required for the administrative board's decision to change the purpose of the institute or to abolish it.
§ 407Establishment of the institute
The institute is established by registration in the public register.
§ 408Director
(1) The director is a statutory body of the institute. The statute may choose another designation for this body, as long as it does not create a misleading impression about its nature.
(2) The director cannot be a member of the board of directors and, if a supervisory board or other body of a similar nature has been established, then not even a member of such a body. If a person convicted of an intentional crime was elected director, the election is not taken into account.
Board of Directors
§ 409
(1) If the founder's legal proceedings do not specify another method, the founder appoints and dismisses the members of the board of directors. If this is not possible, the members of the board of directors are elected and dismissed by the supervisory board, if it has been established; otherwise, the board elects and dismisses its members itself.
(2) If the founding legal proceedings do not specify a different term of office for a member of the board of directors, it is three years. If this does not preclude founding legal proceedings, a member of the board of directors can be elected repeatedly; however, if the board elects and dismisses its members itself, the same person may be re-elected for a maximum of two consecutive terms.
(3) If a supervisory board has been established, membership in the board of directors and in the supervisory board is incompatible.
§ 410
The board of directors elects and dismisses the director, supervises the performance of his powers and decides on the institute's legal proceedings against the director; unless otherwise specified, the chairman of the board of directors acts on behalf of the institute in these legal proceedings.
§ 411
(1) The board of directors approves the budget, regular and extraordinary financial statements and the institute's annual report.
(2) The board of directors decides on the start of operation of a commercial plant or other secondary activity of the institute or on changing its subject, unless the founding legal proceedings stipulate otherwise.
§ 412
(1) If the founding legal proceedings do not specify further restrictions, the board of directors grants prior consent to the legal proceedings by which the institute
a) acquires or loses ownership of immovable property,
b) encumbers own immovable property,
c) acquires or loses a copyright or industrial right or
d) establishes another legal entity or participates in such a entity with a deposit.
(2) If the founding legal act does not specify otherwise, the board of directors also grants prior consent to a legal act by which the institute acquires or loses the ownership right to movable property, the value of which is higher than the value of a small-scale contract according to the law governing public contracts.
§ 413Statute of the institute
(1) If this is determined by the founding legal proceedings or if it is expedient, the board of directors issues the statute of the institute and regulates the internal organization of the institute and details of its activities.
(2) The institute publishes the statute by depositing it in the collection of documents. Anyone can consult the statute in the public register and obtain extracts, descriptions or copies from it. The same right can also be exercised at the headquarters of the institute.
§ 414
If the charter does not specify that the members of the institute's bodies are entitled to remuneration for the performance of their functions and the method of determining it, the director is entitled to the usual remuneration and it is considered that the functions of the members of the other bodies are honorary. In such a case, the board of directors shall determine the amount of the director's remuneration or the method of its determination.
§ 415
(1) The institute accounts separately for the costs and revenues associated with the main subject of activity, with the operation of a commercial plant or other secondary activity and with the administration of the institute.
(2) The financial statement of the institute is verified by the auditor if it is required by the founding legal act or the statute, or if the amount of the net turnover of the institute exceeds ten million CZK. In these cases, the auditor also verifies the institute's annual report.
§ 416Annual Report
(1) The institute's annual report contains, in addition to the requirements stipulated by other legal regulations governing accounting, other important data on the activity and management of the institute, including the amount of payments provided to the members of the institute's bodies, and any changes to the founding legal proceedings or changes to the membership of the institute's bodies.
(2) If the founding legal proceedings do not specify another method of publication, the institute shall publish the annual report no later than six months after the end of the accounting period by depositing it in a collection of documents. Anyone can consult the statute in the public register and obtain extracts, descriptions or copies from it.
§ 417
If the institute does not fulfill its purpose in the long term, the court will cancel it at the proposal of a person who proves the legal interest.
§ 418
In other cases, the provisions on the foundation shall be applied similarly to the legal conditions of the institute; however, the provisions on foundation principal and foundation capital do not apply.
Part 4Consumer
§ 419
A consumer is any person who, outside the scope of his business activity or independent performance of his profession, concludes a contract with an entrepreneur or deals with him in any other way.
Part 5Businessman
§ 420
(1) Anyone who independently carries out gainful activity on their own account and responsibility in a trade or similar manner with the intention of doing so consistently in order to achieve profit is considered an entrepreneur with regard to this activity.
(2) For the purposes of consumer protection and for the purposes of Section 1963, an entrepreneur is also considered to be any person who concludes contracts related to his own business, production or similar activity or in the independent performance of his profession, or a person who acts on behalf of or on behalf of an entrepreneur.
§ 421
(1) A person registered in the commercial register is considered an entrepreneur. The conditions under which persons are registered in the commercial register are determined by another law.
(2) It is considered that an entrepreneur is a person who has a trade or other authorization to do business according to another law.
§ 422
An entrepreneur who does not have a trading company legally acts under his own name in his business; if he adds to it additions characterizing more closely his person or business establishment, they must not be misleading.
Business firm
§ 423
(1) A business firm is the name under which an entrepreneur is registered in the commercial register. An entrepreneur may not have more than one business company.
(2) The protection of rights to a business firm belongs to the person who legally used it for the first time. Those who have been affected in their right to a trading company have the same rights as in protection against unfair competition.
§ 424
A business name must not be interchangeable with another business name or appear deceptive.
§ 425
(1) A person is registered in the commercial register under a business company formed, as a rule, in his name. If his name changes, he may continue to use his former name in the business firm; however, they will publish the name change.
(2) If a person registers in the commercial register under a business name other than his own name, it must be clear that it is not a business of a legal entity.
§ 426
If several business plants of several entrepreneurs are combined into a business group, their names or business names may contain identical elements; however, the public must be able to tell them apart.
§ 427
(1) Whoever acquires a business firm has the right to use it if he has the consent of his predecessor or his legal successor; however, he is required to attach a statement of legal succession to the business firm.
(2) During the transformation of the legal entity, the business firm will transfer to the legal successor, if it agrees; the consent of another person is not required. If the legal entity has several legal successors and if it is not determined which of them the business firm transfers to, the business firm will not transfer to any of them.
§ 428
The right to withdraw consent to the use of his name in the business firm of a legal entity is given to the person who has such a serious reason for doing so that it cannot be fairly demanded of him that his name be used in the business firm; such a reason can be, in particular, a change in the prevailing nature of the business of a legal entity or a change in the ownership structure of a business corporation. Under these conditions, the legal successor of the person who granted the consent also has the right to revoke the consent.
§ 429The seat of the entrepreneur
(1) The seat of the entrepreneur is determined by the address entered in the public register. If a natural person is not registered as an entrepreneur in the public register, his registered office is the place where he has his main business plant, or where he resides.
(2) If an entrepreneur states as his registered office a place other than his real registered office, anyone can also refer to his real registered office. The entrepreneur cannot argue against the person who invokes the seat of the entrepreneur entered in the public register that he has a real seat in another place.
Representation of the entrepreneur
§ 430
(1) If an entrepreneur entrusts someone with a certain activity during the operation of a business plant, this person represents the entrepreneur in all negotiations that usually take place during this activity.
(2) The entrepreneur is also bound by the actions of another person in his establishment, if the third person had a good faith belief that the acting person is authorized to act.
§ 431
If the entrepreneur's representative exceeds the representative's authority, the entrepreneur is bound by legal action; this does not apply if the third party knew about the violation or had to know about it due to the circumstances of the case.
§ 432No competition
(1) A person who acts as an entrepreneur's representative during the operation of a commercial plant may not, without the consent of the entrepreneur, do anything on his own account or for another's account that falls within the field of the commercial plant. If this happens, the entrepreneur can demand that his representative refrain from such actions.
(2) If the representative acted on his own account, the entrepreneur can demand that the representative's actions be declared to have been made on his account. If the representative acted on behalf of a third party, the entrepreneur may demand that the right to remuneration be transferred to him or that the remuneration already provided be issued to him. These rights expire if they have not been exercised within three months from the date the entrepreneur became aware of the transaction, but no later than one year from the date the transaction took place.
(3) Instead of the right according to paragraph 2, the entrepreneur can demand compensation for damages; however, only if the representative should and could have known that his activity was harming the entrepreneur. If the person on whose behalf the entrepreneur's representative acted unlawfully should and could have known that it was an activity damaging the entrepreneur, he is also liable for damages.
§ 433
(1) Whoever, as an entrepreneur, acts towards other persons in economic relations may not abuse his quality as an expert or his economic position to create or exploit the dependence of the weaker party and to achieve an obvious and unjustified imbalance in the mutual rights and obligations of the parties.
(2) It is considered that the weaker party is always the person who acts towards the entrepreneur in economic relations outside the context of his own business.
§ 434
If the entrepreneur makes it clear to the public in which place he does business, he will allow the public to enter into legal relations with him in this place during the specified operating hours; otherwise at the usual time.
§ 435
(1) Every entrepreneur must state his name and address on commercial documents and within the framework of information made available to the public via remote access. An entrepreneur registered in the commercial register shall also include information about this entry, including a section and an insert, on the commercial deed; an entrepreneur registered in another public register shall provide information about his registration in this register; an entrepreneur not registered in the public register shall provide information about his registration in another register. If the entrepreneur has been assigned identifying information, he will also state that.
(2) Other information may also be included in the document according to paragraph 1, if they are not capable of creating a misleading impression.
TITLE IIIREPRESENTATION
Part 1general provisions
§ 436
(1) Whoever is legally authorized to act on behalf of another is his representative; the rights and obligations of the directly represented arise from the representation. If it is not clear that someone is acting on behalf of another, it is valid that he is acting in his own name.
(2) If the representative is in good faith or if he must have known about a certain circumstance, this is also taken into account in the case of the represented; this does not apply if it is a circumstance that the representative became aware of before the establishment of the representation. If he is not represented in good faith, he cannot invoke the good faith of the representative.
§ 437
(1) A person whose interests are in conflict with the interests of the represented cannot represent another, unless during the contractual representation the represented knew or had to know about such a conflict.
(2) If the representative, whose interest is in conflict with the interest of the represented, acted with a third person and if this person knew about this circumstance or if he had to know about it, the represented can invoke it. It is considered that there is a conflict in the interests of the representative and the represented if the representative also acts for this third person or if he acts in his own business.
§ 438
The representative acts personally. He can authorize another representative if it is agreed with the represented person or if the necessary need requires it, but he is responsible for the proper selection of his person.
§ 439
If the person represented has more than one representative for the same matter, it is considered that each of them can act independently.
§ 440
(1) If the representative exceeds the representative's authority, the legal action of the represented person is binding if he approves the exceedance without unnecessary delay. This also applies when a person who is not authorized to do so legally acts for another.
(2) If the legal action is not approved without unnecessary delay, the person who legally acted for another is bound by himself. A person who has been dealt with and who was in good faith can demand from the person acting that he fulfills what was agreed or that he compensates for the damage.
Part 2Contractual representation
Section 1General conditions
§ 441
(1) If the parties so agree, one of them represents the other as an agent to the extent agreed upon.
(2) The principal shall indicate the scope of the representative authority in the power of attorney. If the representation does not concern only a certain legal act, the power of attorney is granted in written form. If a special form is required for legal proceedings, a power of attorney is also granted in the same form.
§ 442
The principal cannot waive the right to revoke the power of attorney, but if the parties agree on certain reasons for its revocation, the power of attorney cannot be revoked for another reason. This does not apply if the principal has a particularly serious reason for revoking the authorization.
§ 443
When authorizing a legal entity, the exercise of representative authorization falls under the purview of its statutory body. A person designated by the statutory body is also entitled to perform representation.
§ 444
(1) Whoever, through his own fault, causes a third person to assume that he has authorized someone else to act legally, cannot plead the lack of authorization, if the third person was in good faith and could reasonably assume that the authorization was granted.
(2) If the principal has made it clear to another person that he has authorized the principal to perform certain legal actions, he can claim against him that the power of attorney has subsequently lapsed, only if he notified him of this before the principal's actions, or if this person knew about the termination during the principal's actions.
§ 445
If a person who is incapable of acting legally himself acted as a representative, this cannot be invoked against someone who did not know or could not have known about this fact.
§ 446
If the authorized representative has exceeded the representative's authority and the principal does not agree with this, he shall notify the person with whom the authorized representative had a legal transaction without undue delay after learning about the legal transaction. If he does not do so, he is deemed to have approved the exceedance; this does not apply if the person with whom the representative was legally dealing should and could have known beyond a doubt from the circumstances that the representative was clearly exceeding the representative's authority.
§ 447
If the instructions of the principal are included in the power of attorney and if they had to be known to the person towards whom the principal was acting, exceeding them is considered a violation of the representative authority.
§ 448
(1) The power of attorney expires by performing the legal action to which the representation was limited; the power of attorney expires even if the principal revokes it or the agent terminates it. If the authorized person or principal dies, or if one of them is a legal entity and ceases to exist, the power of attorney also ceases, unless otherwise agreed.
(2) As long as the revocation is not known to the authorized person, his legal action has the same effects as if the authorization was still valid. However, this cannot be invoked by a party who knew about the revocation of the power of attorney, or should have and could have known.
§ 449
(1) If the principal dies or if the principal terminates the power of attorney, the principal shall do everything that cannot be delayed so that the principal or his legal successor does not suffer damage. His legal action has the same effects as if the power of attorney still lasted, if it does not contradict what the principal or his legal successor has ordered.
(2) The agent shall, without undue delay, after the expiration of the authorization, release everything that the principal has lent to him or acquired for the principal. If the agent has died, everyone who has these things with them has this obligation towards the agent.
Section 2procuration
§ 450
(1) By granting a power of attorney, an entrepreneur registered in the commercial register authorizes the procurator for legal actions that take place during the operation of a business plant or branch, including those for which a special power of attorney is otherwise required. However, the procurator is authorized to alienate or encumber the immovable property, if this is expressly stated.
(2) When granting a power of attorney, it must be explicitly stated that it is a power of attorney. If an entrepreneur grants a power of attorney for a branch of his business plant or for one of several of his business plants, he shall explicitly indicate the branch or business plant.
§ 451
The power of attorney is not authorized to transfer the power of attorney to someone else or grant another power of attorney; contrary arrangements are not taken into account.
§ 452
(1) It is prohibited to grant a power of attorney to a legal entity.
(2) If the power of attorney is granted to several persons, each of them represents the entrepreneur separately, unless something else is specified when the power of attorney is granted.
§ 453
The limitation of prosecution by internal instructions does not have effects against third parties, even if it has been published.
§ 454
The procurator performs the procurator's office with the care of a proper householder.
§ 455
The procurator signs by attaching his signature and information indicating the procurator to the entrepreneur's company; if the power of attorney was granted for an individual branch or one of several business plants, they will also attach information indicating the branch or business plant.
§ 456
The power of attorney also expires with the transfer or lease of the business plant or branch for which it was granted. The prosecutor's office does not expire with the death of the entrepreneur, unless something else was agreed upon.
Part 3Legal representation and guardianship
Section 1General conditions
§ 457
Legal representation and guardianship monitor the protection of the interests of the represented person and the fulfillment of his rights.
§ 458
The legal representative or guardian is not authorized to act legally on behalf of the represented person in matters related to the formation and termination of marriage, the exercise of parental duties and rights, as well as acquisition in the event of death or declaration of disinheritance and their revocation.
§ 459
A legal representative may not take away a matter of special interest from the represented person, unless this is justified by a threat to his life or health, and if it is a minor who is not fully autonomous, also by another serious reason. The matter of special interest must be left to the representative even when he is placed in a medical facility, a social service facility, a social-legal child protection facility or a similar facility.
§ 460
If there is a conflict of interest of the legal representative or guardian with the interest of the represented person, or if there is a conflict of interests of those who are represented by the same legal representative or guardian, or if such a conflict threatens, the court appoints a conflicting guardian for the represented person.
§ 461
(1) If the legal representative or guardian manages the property of the represented person, the ordinary management of such property belongs to him. If it is not a routine matter, court approval is required to dispose of the represented property.
(2) A gift, inheritance or bequest intended for the representative, with the condition that it will be managed by a third party, is excluded from the management according to paragraph 1. However, the legal representative or guardian may refuse to accept such gift, inheritance or bequest; court approval is required to refuse.
§ 462
Neither the legal representative nor the guardian can demand remuneration for representation from the represented person. However, if he has the duty to manage the property, a fee can be awarded for the management. The court will decide on its amount, taking into account the costs of administration, the value of the managed property and the income from it, as well as the time and labor requirements of the administration.
§ 463
(1) The guardian is appointed by the court; at the same time, it will determine the scope of the guardian's rights and obligations. The person to whom the guardian was appointed becomes a ward for the duration of the guardianship.
(2) If the guardian requests it, the court will remove him; the court will remove the guardian even if he does not fulfill his duties. At the same time, the guardian appoints a new guardian.
§ 464
(1) If it is not about managing assets, only one guardian can be appointed for a person. If a special guardian is appointed for the administration of the property of the represented person or for the administration of a part of his property and at the same time the guardian of a person, the latter of them shall have the exclusive representation of the person represented before the court, even if the matter concerns the managed property.
(2) If the court appoints several guardians and does not decide in which matters each of them is legally competent to act for the ward separately, the guardians are obliged to act together.
Section 2Custody of a person
§ 465
(1) The court appoints a guardian for a person if it is necessary to protect his interests or if the public interest requires it. The court appoints a guardian in particular to a person whose legal capacity has been limited, to a person whose whereabouts are unknown, to an unknown person involved in a certain legal proceeding, or to a person whose health condition causes difficulties in managing property or defending rights.
(2) If the circumstances justify it, the court can order the guardian to take out insurance to a reasonable extent in the event that he causes damage to the guardian or another person while performing his duties.
§ 466
(1) The responsibilities of the guardian include maintaining regular contact with the ward in an appropriate manner and to the necessary extent, showing genuine interest in the ward, as well as taking care of his health and ensuring the fulfillment of the ward's rights and protecting his interests.
(2) If the guardian makes a decision about the ward's affairs, the guardian will explain the nature and consequences of the decision in a comprehensible manner.
§ 467
(1) In the performance of his duties, the guardian fulfills the guardian's legal declaration and pays attention to his views, even if the guardian has expressed them earlier, including beliefs or confessions, consistently takes them into account and arranges the ward's affairs in accordance with them. If this is not possible, the guardian acts according to the interests of the ward.
(2) The guardian ensures that the ward's way of life does not conflict with his abilities and that, if this cannot reasonably be opposed, it also corresponds to the ward's special ideas and wishes.
§ 468
Upon the death of the guardian or his removal, the guardianship does not cease and until the court appoints a new guardian, it passes to the public guardian under another law.
§ 469
(1) For a person whose health condition causes difficulties in the management of his property or in the defense of his rights, the court appoints a guardian on his proposal and, in accordance with such a proposal, determines the scope of the guardian's powers. At the request of the guardian, the court will also recall the guardian.
(2) The guardian usually acts together with the ward; if the guardian acts independently, he acts in accordance with the will of the ward. If the guardian's will cannot be ascertained, the court will decide on the guardian's motion.
§ 470
If someone arranges for the manager of his property himself, he cannot appoint a guardian for the management of the property. This does not apply if the administrator of the property is not known, if he refuses to act in the interests of the represented person or if he neglects this duty, or if he is unable to manage the property.
§ 471
(1) If the court decides to appoint a guardian for a person, it can do so only after seeing him, unless there is an insurmountable obstacle; they must also listen to his statement or otherwise find out his position and proceed from it.
(2) The court appoints the person nominated by the guardian as the guardian. If this is not possible, the court usually appoints a relative or another person close to the ward who proves a long-term and serious interest in the ward and the ability to show it in the future. If even that is not possible, the court appoints another person who meets the conditions to become a guardian, or a public guardian according to another law, as guardian.
(3) The municipality where the guardian resides, or a legal entity established by this municipality to perform tasks of this type, has the capacity to be a public guardian; the appointment of a public guardian under another law is not bound by his consent.
Guardian Council
§ 472
(1) If a guardian is appointed, the guardian or any person close to the guardian may request the establishment of a guardianship council; the guardian calls a meeting of persons close to the ward and his friends, if they are known to him, so that the meeting takes place within thirty days of receiving the request. If the meeting is not convened in time or if it is not held for another reason, or if the guardianship council is not elected, the court will convene the meeting, even without a proposal.
(2) The guardian, any person close to the guardian and any of his friends may attend the meeting, even if he has not been invited; each of them has one vote. If at least five people attend the meeting, the guardian board can be elected.
§ 473
(1) The persons present at the meeting elect the members of the guardianship council, or their substitutes, by a majority of votes. During the election, care must be taken, if possible, for equal representation of the persons listed in § 472.
(2) A member of the guardianship council can only be a person who proves a long-term and serious interest in the ward and the ability to show it in the future, and whose interests do not conflict with the interests of the ward. The guardian cannot be a member of the guardianship council.
§ 474
The Guardian Council has at least three members. It is able to resolve in the presence of the majority of members; however, if the board of guardians has three members, the presence of all is required. Decisions are taken by the Guardian Council by a majority vote of the members present.
§ 475
The minutes of the election of members of the guardianship council and substitutes will be drawn up by a recorder appointed by those present. It must be clear from the minutes when the meeting was held, who attended it, who was elected recorder, member of the guardianship board and substitute and how many votes, whether someone protested the course of the meeting and for what reason. Protests submitted in written form must be attached to the minutes. The recorder shall deliver the record of the election of members of the guardianship council to the guardian and the court that appointed the guardian.
§ 476
(1) The court may, on the proposal of the guardian or any person authorized to participate in the meeting, or without a proposal, declare the election to be invalid, if there has been such a violation of the law that the guardian is in danger of being harmed as a result. In such a case, the court shall order a new election without undue delay.
(2) If there are serious reasons for this, the court may suspend the exercise of the rights of a member of the guardianship board after the initiation of proceedings until a decision is made on the invalidity of the election.
§ 477
(1) A member of the guardianship board is elected for an indefinite period. He may resign from his position; withdrawal is effective upon delivery of written notice to the guardian and the court. He shall notify the other members of the guardianship council of his resignation.
(2) The court may remove a member of the guardianship board from office at the proposal of the guardian or any of the persons authorized to participate in the meeting, or on its own initiative, if the member of the guardianship board seriously or repeatedly violates his duties, if he loses interest in the ward or if his interests are repeatedly in conflict with the ward's interests. The provision of Section 476, paragraph 2, shall be applied mutatis mutandis.
(3) When a member of the guardianship council ceases to function, the guardian or chairman of the guardianship council arranges for the election of a new member of the guardianship council or a substitute. If the election does not take place without unnecessary delay, the court proceeds similarly according to § 472, paragraph 1.
§ 478
(1) The Board of Trustees meets at least once a year; it is called to a meeting by its chairman, or by the guardian, otherwise by any member of the guardianship council, or by the court at the proposal of a person who certifies a serious interest in the ward, or even without a proposal.
(2) The guardianship council will invite both the ward and the guardian to the meeting.
(3) It must be clear from the minutes of the meeting of the guardianship council when it was held, who participated in it, what decisions were taken, who raised a protest and who took the minutes. If the minutes do not indicate who voted for the proposal and who against the proposal, it is assumed that all members of the guardianship board present voted for the adoption of the proposal. The minutes will be delivered by the chairman of the guardianship council to the guardian and the court that appointed the guardian.
§ 479
(1) At its regular meeting, the guardianship council discusses the guardian's report on his activities in the ward's affairs, comments on the inventory of the ward's property and the account of its management, as well as the account of any remuneration of the guardian for the management of the property.
(2) If the guardianship council decides on this, its member authorized to do so by the resolution will submit a proposal to the court to change the amount of the guardian's remuneration for managing the ward's assets.
(3) If the guardianship council decides to do so, its authorized member will submit a proposal to the court to cancel the guardianship, or to remove the guardian and replace him with another person.
§ 480
(1) Without the consent of the guardian council, the guardian may not decide on
a) change of residence of the ward,
b) placement of the ward in a closed institution or similar facility in the event that the state of health of the ward clearly does not require it, or
c) interventions into the integrity of the ward, if they are not interventions without serious consequences.
(2) Without the consent of the guardianship council, the guardian may not dispose of the ward's property, if it is
a) acquisition or alienation of property with a value exceeding the amount corresponding to one hundred times the subsistence minimum for an individual according to another legal regulation,
b) acquisition or alienation of property exceeding one third of the ward's property, unless this third represents only a small value, or
c) acceptance or provision of a loan, credit or security in the values specified in letter a) or b),
unless the approval of the court is also required for such decisions.
(3) If it is in the interest of the ward, the guardianship council can decide what further decisions of the guardian about the ward are subject to its approval; such resolutions may not restrict the guardian beyond what is reasonable under the circumstances.
§ 481
A member of the guardianship council who did not vote for its decision, the guardian or ward may, within fifteen days of the adoption of the decision, propose to the court that the guardianship council's decision be annulled and replaced with its own decision. Until the court decides, the decision of the guardianship council will not have legal effects.
§ 482
(1) If a guardianship council cannot be established due to the lack of interest of a sufficient number of persons listed in § 472 paragraph 1 or for other similar reasons, the court may, on the proposal of one of these persons, decide that the powers of the guardianship council will be exercised by only one of these persons and decide at the same time on its appointment.
(2) If the guardianship council is not elected and if the procedure according to paragraph 1 is not possible, the court approves the measures of the guardian of the ward's parties or his property instead of the guardianship council.
§ 483
(1) If the court has not approved it, the guardian may not consent to a change in the ward's personal status.
(2) If the guardian manages the ward's property, he may not, without the consent of the court, unless the court has decided on further restrictions,
a) oblige the wards to fulfill one of the members of the guardianship council or a person close to this member,
b) acquire immovable property or a share in it for the ward, nor alienate or encumber the ward's immovable property or share in it,
c) acquire a business plant, a share in a business plant or a share in a legal entity for the ward, nor alienate or encumber this property; this does not apply if it concerns the acquisition of participating or similar securities ensuring a safe return,
d) enter into a contract on behalf of the ward obligating him to continuous or repeated performance for a period of more than three years,
e) refuse inheritance or other performance from the estate, or
f) to oblige the ward to perform gratuitously to another person, unless it is a gift provided on a usual occasion in accordance with the principles of decency to a reasonable extent and the ward is capable of judgment and has expressed consent to the gift.
(3) Without regard to the provisions of paragraph 2, the guardian may not, unless approved by the court, dispose of the property of the ward, if it is
a) acquisition or alienation of property with a value exceeding the amount corresponding to five hundred times the subsistence minimum for an individual according to another legal regulation,
b) the acquisition or alienation of property exceeding one half of the ward's property, unless this half represents only an insignificant value and is not a thing that is of special interest to the ward, or
c) acceptance or provision of a loan, credit or security in the values specified under letter a) or b).
(4) Before making a decision according to paragraphs 1 to 3, the court shall request the opinion of the guardianship council. If the guardianship council does not inform the court of its opinion within a reasonable period of time, then the court will decide on its own.
§ 484
(1) A legal entity whose main activity consists in caring for persons with disabilities and protecting their interests has the right to propose that a meeting be convened to establish a guardianship board.
(2) A legal entity whose main activity consists in the care of persons with disabilities and the protection of their interests, which has been operating continuously in the Czech Republic for at least three years and has been in regular contact with the ward for at least three months, has the right to be a member of the guardianship council or to participate in its meeting , a meeting to establish a guardianship council and propose to the court to cancel the guardianship council's decision and replace it with its own decision. However, if this legal entity does not exercise its rights in accordance with the interests of the ward, the court will take away these rights at the proposal of the ward, guardian or members of the guardianship council.
§ 485Asset inventory and administration statement
(1) The guardian who manages the property of the ward shall draw up an inventory of the managed property within two months of his appointment and deliver it to the court, the ward and the guardianship council.
(2) During the duration of the guardianship, the guardian shall draw up an account of the management of the assets every year by June 30th, unless it is agreed with the members of the guardianship council that the account will be submitted earlier. If there is an important reason for this, the guardian or the guardianship council can propose to the court that the guardian be obliged to draw up an extraordinary account. The guardian shall deliver each bill to the ward, the guardianship board and the court.
(3) The guardian, whose position ends, delivers the final account of the administration of the property to the guardian, the guardianship council and the court, where applicable, also to the next guardian or court commissioner appointed in the probate proceedings. If the guardian dies, anyone who has these documents and documents with him shall issue to the court that appointed him documents and other documents relating to the ward and his affairs.
Section 3Guardianship of a legal entity
§ 486
(1) The court appoints a guardian to a legal entity that needs it in order to manage its affairs or to defend its rights.
(2) The court can only appoint a person who meets the conditions set for eligibility to be a member of a statutory body as a guardian of a legal entity. If the guardian ceases to fulfill these conditions, he shall notify the court without undue delay. If the court learns that the guardian does not meet the stated conditions, it will replace him without undue delay with a new guardian.
§ 487
(1) The provisions on the rights and obligations of a member of a statutory body apply similarly to the rights and obligations of a guardian of a legal entity. The powers of the guardian are adequately governed by the provisions on the powers of the statutory body.
(2) The court orders the guardian to endeavor with professional care for the proper restoration of the activity of the statutory body of the legal entity; if necessary, the court will further define the powers of the guardian, taking into account the powers of other bodies of the legal entity, as well as the rights of partners.
§ 488
If the founding legal act determines that a certain person is to be appointed as guardian of the legal entity, the court appoints such a person as guardian, if he is qualified to do so and agrees to the appointment.
TITLE IVTHINGS AND THEIR DISTRIBUTION
Part 1general provisions
§ 489
A thing in the legal sense (hereinafter referred to as a "thing") is everything that is different from a person and serves the needs of people.
§ 490
A thing intended for general use is a public good.
§ 491
(1) Fruit is that which a thing regularly provides from its natural nature, as given by its usual purpose and in proportion to it, whether with or without the intervention of man.
(2) Benefits are what the thing regularly provides from its legal nature.
§ 492
(1) The value of a thing, if it can be expressed in money, is its price. The price of the thing is determined as the usual price, unless something else is agreed or determined by law.
(2) The extraordinary price of a thing is determined if its value is to be replaced, taking into account special conditions or special popularity caused by accidental properties of the thing.
§ 493
The human body or its parts, though separated from the body, are not things.
§ 494
A living animal has a special meaning and value already as a living creature gifted with senses. A living animal is not a thing, and the provisions on things apply mutatis mutandis to a living animal only to the extent that this does not contradict its nature.
§ 495
The sum of everything that belongs to a person constitutes his property. A person's wealth is the sum of his assets and his debts.
Part 2Division of things
§ 496Tangible and intangible things
(1) A material thing is a controllable part of the external world that has the nature of a separate object.
(2) Intangibles are rights whose nature admits of it, and other things without material substance.
§ 497Controllable natural forces
For controllable natural forces that are dealt with, the provisions for material things shall apply accordingly.
§ 498Immovable and movable things
(1) Immovable property is land and underground structures with a separate purpose, as well as real rights to them, and rights that the law declares as immovable property. If another legal regulation stipulates that a certain thing is not part of the land, and if such a thing cannot be transferred from place to place without violating its essence, this thing is also immovable.
(2) All other things, whether their essence is material or immaterial, are movable.
§ 499A replaceable thing
A movable thing that can be replaced by another thing of the same kind is fungible; other things are irreplaceable. In case of doubt, the case will be assessed according to custom.
§ 500Consumable thing
A movable thing, the normal use of which consists in its consumption, processing or alienation, is expendable; moveable things that belong to a warehouse or to another group are also expendable, if their normal use consists in the fact that they are sold individually. Other things are non-consumable.
§ 501Bulk thing
A set of individual things belonging to the same person, considered as one object and as such bearing a common designation, is considered as a whole and constitutes a collective thing.
§ 502Business plant
A business enterprise (hereafter referred to as the "enterprise") is an organized set of assets created by an entrepreneur and which, at his will, is used to run his business. It is considered that the plant consists of everything that usually serves to operate it.
§ 503Branch
(1) A branch is a part of the plant that shows economic and functional independence and which the entrepreneur decided to be a branch.
(2) If the branch is registered in the commercial register, it is a spin-off plant; this also applies to another organizational component, if another legal regulation stipulates that it shall be entered in the commercial register. The head of the spin-off plant is entitled to represent the entrepreneur in all matters related to the spin-off plant from the day on which he was registered as the head of the spin-off plant in the commercial register.
§ 504Business secret
Trade secrets consist of competitively significant, determinable, valuable and normally unavailable facts in the relevant business circles, which are related to the plant and whose owner ensures their secrecy in an appropriate manner in his interest.
Part 3Part of the thing and accessory of the thing
Part of the thing
§ 505
A part of a thing is everything that belongs to it according to its nature and that cannot be separated from the thing without thereby devaluing the thing.
§ 506
(1) The land includes the space above and below the surface, buildings erected on the land and other facilities (hereinafter referred to as "the building"), with the exception of temporary structures, including what is embedded in the land or fixed in the walls.
(2) If the underground structure is not an immovable thing, it is part of the land, even if it extends under another land.
§ 507
Part of the plot is the vegetation that grows on it.
§ 508
(1) A machine or other fixed device (hereinafter referred to as "the machine") is not part of an immovable property entered in the public register if, with the consent of its owner, a proviso has been entered in the same list that the machine is not his property. The reservation will be deleted if the owner of the immovable object or another person authorized to do so, according to the entry in the public register, proves that the owner of the immovable object has become the owner of the machine.
(2) If such a machine is to be replaced by a machine that is part of immovable property, a reservation can be entered in the public register, unless the person entered in a more favorable order does not object. However, a person whose right cannot be abridged by recording a reservation, or a person whose claim has already been fulfilled, does not have the right to object; for this purpose, a claim that has not yet matured can also be fulfilled.
§ 509
Engineering networks, especially water pipes, sewers or energy or other lines, are not part of the plot. It is considered that engineering networks also include buildings and technical equipment that are operationally related to them.
Accessories things
§ 510
(1) An accessory thing is a secondary thing of the owner to the main thing, if the purpose of the secondary thing is to use it permanently together with the main thing within the scope of their economic purpose. If the secondary thing was temporarily separated from the main thing, it does not cease to be an accessory.
(2) It is considered that legal actions and rights and obligations relating to the main thing also apply to its accessories.
§ 511
If there is doubt as to whether something is an accessory to the thing, the case is assessed according to custom.
§ 512
If the building is part of the land, the owner's incidentals to the building are accessories to the land, if their purpose is to be permanently used with the building or the land as part of their economic purpose.
§ 513
Accessories of the claim include interest, late payment interest and costs associated with its application.
Part 4Securities
Section 1General conditions
§ 514
A security is a document with which the right is linked in such a way that, after the security has been issued, it cannot be exercised or transferred without this document.
§ 515
If the issuer has not issued a security as a type with the requirements specially regulated by law, the deed must specify at least the right associated with the security and information about the issuer by reference to the terms of issue.
§ 516Fungible securities
(1) Securities of the same type issued by the same issuer in the same form, from which the same rights arise, are fungible.
(2) The issuer's signature on a fungible security can be replaced by his imprint, if the document is simultaneously protected against forgery or alteration.
§ 517
REGULATION (EU) No. 524/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
dated 21 May 2013
on the resolution of consumer disputes online and on the amendment of Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Regulation on the resolution of online consumer disputes)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
with regard to the Treaty on the Functioning of the European Union, and in particular to Article 114 of this Treaty,
with regard to the proposal of the European Commission,
after referral of the draft legislative act to the national parliaments,
having regard to the opinion of the European Economic and Social Committee (1),
in accordance with due legislative procedure (2),
due to the following reasons:
(1) |
In Article 169 paragraph 1 and in Article 169 paragraph 2 letter a) The Treaty on the Functioning of the European Union (hereinafter referred to as the "Treaty on the Functioning of the EU") stipulates that the Union contributes to ensuring a high level of consumer protection through measures adopted pursuant to Article 114 of the Treaty on the Functioning of the EU. Article 38 of the Charter of Fundamental Rights of the European Union stipulates that a high level of consumer protection is ensured in Union policies. |
(2) |
In accordance with Article 26, paragraph 2 of the Treaty on the Functioning of the EU, the internal market includes an area without internal borders in which the free movement of goods and services is ensured. In order for consumers to have confidence in and benefit from the digital dimension of the internal market, it is essential that they have access to simple, effective, fast and inexpensive ways to resolve disputes arising from the sale of goods or the provision of services online. This is especially important in cases where consumers are shopping abroad. |
(3) |
(4) |
The fragmentation of the internal market hampers efforts to increase competitiveness and growth. Furthermore, the different availability and quality of simple, effective, fast and cheap means of resolving disputes arising from the sale of goods or the provision of services across the Union, and different awareness of these means, constitute an obstacle to the internal market that undermines consumer and trader confidence in cross-border buying and selling. |
(5) |
In its conclusions from the meetings held on 24 and 25 March 2011 and 23 October 2011, the European Council called on the European Parliament and the Council to adopt the first set of priority measures by the end of 2012, which should represent a new impetus for the single market. |
(6) |
The internal market is a daily reality for consumers as they travel, shop and make payments. Consumers are key players in the internal market and should therefore be at the heart of it. The digital dimension of the internal market is becoming crucial for consumers and traders. Consumers are increasingly buying online and more and more merchants are selling online. Consumers and merchants should have confidence in transacting online, so it is essential to remove existing barriers and promote consumer confidence. The availability of reliable and effective online dispute resolution would go a long way towards achieving this goal. |
(7) |
Access to easy and cheap dispute resolution can strengthen consumer and trader confidence in the Digital Single Market. However, consumers and traders still face obstacles in seeking out-of-court resolution, particularly in the case of disputes arising in connection with cross-border transactions carried out online. These disputes thus often remain unresolved at present. |
(8) |
Online dispute resolution offers a simple, efficient, fast and inexpensive out-of-court resolution of disputes arising in connection with transactions carried out online. However, there is currently a lack of mechanisms that would allow consumers and traders to resolve these disputes by electronic means; this fact is at the expense of consumers, acts as an obstacle especially for cross-border transactions carried out online, creates unequal conditions for traders, and as a result damages the overall development of online trading. |
(9) |
This Regulation should apply to the out-of-court settlement of disputes initiated by consumers resident in the Union against traders established in the Union covered by Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumers ( directive on alternative resolution of consumer disputes) (3). |
(10) |
In order to ensure that the online dispute resolution platform can also be used for alternative dispute resolution procedures that allow traders to file complaints against consumers, this Regulation should also cover the out-of-court resolution of disputes initiated by traders and directed against consumers, where entities of alternative dispute resolution listed in accordance with Article 20, paragraph 2 of Directive 2013/11/EU offer relevant alternative dispute resolution procedures. The application of this Regulation to such disputes should not oblige Member States to ensure that ADR entities offer such procedures. |
(11) |
(12) |
This Regulation should be without prejudice to Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (4). |
(13) |
The definition of "consumer" should include natural persons acting outside the scope of their trade, business, trade or profession. However, if the contract is concluded for a purpose that is partly within and partly outside the scope of the person's business activity (dual-purpose contracts) and the business purpose of this activity is so marginal that it does not prevail in the overall context of the transaction in question, that person should also be considered consumers. |
(14) |
The definition of "online purchase contract or online service contract" should include a purchase contract or service contract where the trader or his intermediary has offered goods or services through a website or other electronic means and the consumer has purchased such goods or ordered services on this site or through any other electronic means. This should also apply to cases where the consumer accessed a website or other information society service via a mobile electronic device, such as a mobile phone. |
(15) |
This Regulation should not apply to disputes between consumers and traders that arise in connection with sales contracts or contracts for the provision of services concluded offline, nor to disputes between traders. |
(16) |
This Regulation should be read in conjunction with Directive 2013/11/EU, which requires Member States to ensure that in all disputes between consumers resident in the Union and traders established in the Union arising in connection with the sale of goods or the provision of services of these disputes to the subject of alternative dispute resolution. |
(17) |
Before consumers submit their complaint to an ADR entity through an online dispute resolution platform, Member States should encourage them to contact traders by all appropriate means with a view to resolving the dispute amicably. |
(18) |
The aim of this regulation is to create a platform for online dispute resolution at Union level. The online dispute resolution platform should take the form of an interactive website offering a single point of contact for consumers and traders seeking out-of-court resolution of disputes arising in connection with online transactions. The online dispute resolution platform should provide general information on the out-of-court resolution of contractual disputes between traders and consumers that arise in connection with purchase contracts or contracts for the provision of services concluded online. It should allow consumers and traders to lodge a complaint by completing an electronic complaint form available in all official languages of the Union institutions and attaching the relevant documents. It should forward these complaints to the alternative dispute resolution entity responsible for resolving the dispute in question. The online dispute resolution platform should offer free of charge an electronic case management tool that allows ADR entities to conduct the dispute resolution process with the parties through the online dispute resolution platform. ADR entities should not be required to use the electronic case management tool. |
(19) |
The Commission should be responsible for the development, operation and maintenance of the online dispute resolution platform and provide all technical equipment necessary for the functioning of the platform. The online dispute resolution platform should offer an electronic translation function that allows the parties to the dispute and the alternative dispute resolution entity access to the information exchanged through the online dispute resolution platform and necessary for the resolution of the dispute, possibly also in translated form. This function should be able to handle all necessary translations and possibly be supplemented by translator services. The Commission should also provide complainants with information on the possibility to seek help from online dispute resolution contact points within the framework of the online dispute resolution platform. |
(20) |
The online dispute resolution platform should guarantee the secure exchange of data with alternative dispute resolution entities and respect the basic principles of the European Interoperability Framework adopted pursuant to Decision 2004/387/EC of the European Parliament and of the Council of 21 April 2004 on the interoperable provision of pan-European electronic government services (eGovernment) to public administration bodies, businesses and citizens (IDABC) (5). |
(21) |
The online dispute resolution platform should be accessible in particular through the "Your Europe" portal established in accordance with Annex II of Decision 2004/387/EC, which allows access to pan-European, multilingual information and interactive services provided to businesses and citizens in the Union on- idly. The online dispute resolution platform should be prominently displayed on the "Your Europe" portal. |
(22) |
(23) |
By registering all ADR entities listed under Article 20(2) of Directive 2013/11/EU within the online dispute resolution platform, full coverage of out-of-court dispute resolution systems arising online should be enabled in connection with purchase contracts or contracts for the provision of services concluded online. |
(24) |
(25) |
Contact points for online dispute resolution with at least two online dispute resolution advisors should be designated in each Member State. Online dispute resolution points of contact should support parties to a dispute submitted through an online dispute resolution platform without the obligation to translate documents related to the dispute. Member States should be able to transfer responsibility for contact points for online dispute resolution to their centers involved in the network of European Consumer Centres. Member States should use this option to allow online dispute resolution contact points to fully benefit from the experience of the centers operating in the European Consumer Centers network in helping to resolve disputes between consumers and traders. The Commission should establish a network of online dispute resolution contact points to facilitate their cooperation and activities and, in cooperation with Member States, ensure adequate training for online dispute resolution contact points. |
(26) |
The right to an effective remedy and a fair trial are fundamental rights set out in Article 47 of the Charter of Fundamental Rights of the European Union. Online dispute resolution is not intended to and cannot replace legal proceedings, nor should it deprive consumers or traders of their right to seek redress in the courts. This Regulation should therefore not prevent litigants from exercising their right of access to justice. |
(27) |
The processing of information under this Regulation should be subject to strict guarantees of confidentiality and should be in accordance with the rules for the protection of personal data set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data data and the free movement of such data (6) and in Regulation (EC) No. 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of natural persons in connection with the processing of personal data by Community bodies and institutions and on the free movement of such data (7). These rules should apply to the processing of personal data carried out pursuant to this Regulation by the various platform actors, whether acting alone or jointly with other platform actors. |
(28) |
Data subjects should be informed about the processing of their personal data within the framework of the online dispute resolution platform, to which they should express their consent, and about their rights related to said processing, namely through a summary notice on the protection of personal data published by the Commission, in which will clarify in clear and understandable language the individual processing operations carried out under the responsibility of the various actors of the platform, in accordance with Articles 11 and 12 of Regulation (EC) No. 45/2001 and with national legislation adopted in accordance with Articles 10 and 11 of Directive 95/46 /EC. |
(29) |
This Regulation should be without prejudice to confidentiality provisions in national ADR legislation. |
(30) |
In order to ensure that consumers are widely aware of the existence of an online dispute resolution platform, traders established in the Union who are parties to online sales or service contracts should provide an electronic link to that platform on their websites. Merchants should also provide their email address, which serves as the first point of contact for consumers. A significant proportion of sales contracts and contracts for the provision of goods concluded online are concluded through Internet marketplaces that enable or facilitate transactions between consumers and merchants conducted online. These Internet marketplaces are online platforms that allow merchants to make their goods or services available to consumers. These online marketplaces should therefore have the same obligation to provide an electronic link to the online dispute resolution platform. This obligation should be without prejudice to Article 13 of Directive 2013/11/EU concerning the information by traders to consumers about the alternative dispute resolution procedures applicable to those traders and whether they have undertaken to use alternative dispute resolution procedures to resolve disputes with consumers or not. In addition, this obligation should not affect Article 6 paragraph 1 letter t) and Article 8 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (8). In Article 6 paragraph 1 letter t) Directive 2011/83/EU stipulates that in the case of consumer contracts concluded at a distance or off-premises, the consumer must be informed by the trader about the possibility of using the mechanism for out-of-court settlement of complaints and remedies that applies to the trader, and the way to access it. For the same reason regarding consumer awareness, Member States should encourage consumer associations and traders' associations to provide an electronic link to the website of the online dispute resolution platform. |
(31) |
In order to ensure that the criteria by which ADR entities define the scope of their competence are taken into account, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the specification of the information to be provided by the complainant in the electronic form for complaints, which is available within the online dispute resolution platform. It is particularly important that the Commission conducts appropriate consultations during its preparatory work, including consultations at expert level. When preparing and drawing up delegated acts, the Commission should ensure that relevant documents are transmitted simultaneously, in a timely and appropriate manner to the European Parliament and the Council. |
(32) |
In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission in respect of the functioning of the online dispute resolution platform, the methods of lodging complaints and the cooperation with the network of contact points for online dispute resolution. These powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles for the control by Member States of the Commission in the exercise of implementing powers (9). An advisory procedure should be used for the adoption of implementing acts concerning the electronic complaint form, as this is a purely technical matter. A review procedure should be used to adopt rules on how advisers in the online dispute resolution contact point network can work together. |
(33) |
(34) |
Since the objective of this Regulation, namely to establish a European online dispute resolution platform governed by common rules, cannot be satisfactorily achieved at Member State level and can therefore, by reason of the scope and effects of this Regulation, be better achieved at Union level, the Union may take measures in accordance with the principle of subsidiarity established in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. |
(35) |
This Regulation respects fundamental rights and respects the principles recognized in particular by the Charter of Fundamental Rights of the European Union, and in particular Articles 7, 8, 38 and 47 of the said Charter. |
(36) |
The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and adopted an opinion on 12 January 2012 (10), |
—
DIRECTIVE 2009/22/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 April 2009 on injunctions in the field of consumer protection (codified text) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, having regard to the Treaty on the establishment of the European Community, and in particular Article 95 of this Treaty, having regard to the proposal of the Commission, having regard to the opinion of the European Economic and Social Committee (1), in accordance with the procedure laid down in Article 251 of the Treaty (2), having regard to the following reasons: ( 1) Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions in the field of consumer protection (3) has been substantially amended several times (4). For the sake of comprehensibility and clarity, the said directive should be codified. (2) Certain directives listed in Annex I of this directive lay down rules for the protection of consumer interests. (3) The existing mechanisms, both at national and Community level, which ensure compliance with these directives, do not always allow timely elimination of violations of regulations damaging the collective interests of consumers.
Collective interests represent interests that are not merely the accumulation of interests of individuals who have been harmed by the breach of regulations.
This is without prejudice to separate motions by individuals who have been harmed by the violation. (4) With regard to the purpose of preventing practices that are contrary to applicable national law, if these practices are manifested in a Member State other than where they originate, the effectiveness of national measures implementing the said directives, including protective measures that go beyond required by these guidelines and which are compatible with the Treaty and permissible under said guidelines. (5) These difficulties can disrupt the smooth functioning of the internal market as a result of the fact that it is enough to move the source of the illegal practice to another state to make it beyond the reach of any way of applying the law.
This causes a distortion of competition. (6) The aforementioned difficulties may reduce consumer confidence in the internal market and limit the field of activity of consumer organizations that represent the collective interests of consumers or of independent public bodies that are responsible for protecting the collective interests of consumers if these interests are adversely affected by practices that violate Community law. (7) Such practices often cross borders between Member States.
There is therefore an urgent need to approximate to a certain extent the national regulations on the prevention of such illegal practices, regardless of the Member State in which they occur. With regard to jurisdiction, the regulations of international private law remain unaffected, as well as valid agreements between Member States, while the general obligations of Member States arising from the Treaty, in particular obligations related to the proper functioning of the internal market, must be observed. (8) The objectives of the specified measure can only be achieved through the Community. The community is therefore obliged to act. (9) According to the third subparagraph of Article 5 of the Treaty, the Community shall not go beyond what is necessary to achieve the objectives of the Treaty. On the basis of the mentioned article, the peculiarities of national legal systems must be taken into account as much as possible, so that Member States are given the possibility to choose from different variants with the same effect. Courts or administrative authorities competent to conduct proceedings within the meaning of this Directive should be empowered to review the effects of earlier decisions. (10) One option should consist in a requirement where one or more independent public law entities exclusively entrusted with the protection of the collective interests of consumers would exercise the right to act established by this Directive. Another option would be to ensure that these entities, whose objective is to protect the collective interests of consumers, exercise these rights in accordance with the criteria under national law. (11) Member States should be able to opt for
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REGULATION (EC) No. 2006/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
dated 27 October 2004
on cooperation between national authorities responsible for enforcement of laws for the protection of consumer interests ("regulation on cooperation in the field of consumer protection")
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
having regard to the Treaty establishing the European Community, and in particular to Article 95 thereof,
having regard to the proposal of the Commission,
having regard to the opinion of the European Economic and Social Committee (1),
after consulting the Committee of the Regions,
in accordance with the procedure laid down in Article 251 of the Treaty (2),
due to the following reasons:
(1) |
Council Resolution of 8 July 1996 on cooperation between administrative authorities in the enforcement of internal market legislation (3) confirmed the need for sustained efforts to deepen cooperation between administrative authorities and called on Member States and the Commission to give priority consideration to the possibility of strengthening administrative cooperation in law enforcement. |
(2) |
Existing national enforcement rules for consumer protection laws are not adapted to the needs of law enforcement within the internal market and effective and efficient law enforcement cooperation is currently not possible in these cases. These difficulties create obstacles to the cooperation of public enforcement authorities in detecting and investigating cases of violations of laws protecting the interests of consumers within the Community and in achieving the termination or prohibition of such violations. The resulting lack of effective enforcement in cross-border cases allows sellers and suppliers to avoid enforcement attempts by relocating their business activities within the Community. This creates a distortion of competition with local or cross-border sellers and suppliers who comply with the law. Difficulties in enforcing compliance in cross-border cases also undermine consumers' confidence in using cross-border offers and thus their confidence in the internal market. |
(3) |
It is therefore appropriate to facilitate the cooperation of public authorities responsible for enforcing compliance with laws protecting consumer interests when dealing with cases of their violation within the Community and to contribute to the proper functioning of the internal market, the quality and consistency of enforcing compliance with laws protecting consumer interests and monitoring the protection of consumer economic interests. |
(4) |
Community legislation contains law enforcement cooperation networks that protect consumers beyond their economic interests, not least where their health is concerned. There should be an exchange of best practices between the networks established by this Regulation and the other networks listed. |
(5) |
The scope of the mutual cooperation provisions contained in this Regulation should be limited to infringements of Community consumer protection legislation that occur within the Community. The effectiveness with which infringements are prosecuted at national level should ensure that there is no discrimination between national and intra-Community transactions. This Regulation does not affect the powers of the Commission in relation to infringements of Community law by Member States, nor does it confer on the Commission the power to put an end to intra-Community illegal acts as defined in this Regulation. |
(6) |
The protection of consumers against intra-Community infringement requires the establishment of a network of public enforcement authorities throughout the Community and these authorities must have minimum joint investigative and enforcement powers in order to effectively apply this Regulation and deter sellers or suppliers from intra-Community infringement. |
(7) |
In order to ensure the proper functioning of the internal market and consumer protection, it is essential that the competent authorities are able to cooperate freely and on the basis of reciprocity in the exchange of information, the detection and investigation of illegal acts within the Community and in taking measures to end or prohibit such illegal acts. |
(8) |
Competent authorities should also, where appropriate, use other powers or measures conferred at national level, including the power to immediately open an investigation or refer the matter to criminal prosecution, in order to terminate or prohibit unlawful conduct within the Community, possibly on the basis of a request for mutual assistance. |
(9) |
Information exchanged between competent authorities should be subject to the strictest guarantees of confidentiality and professional secrecy to avoid jeopardizing investigations or unfairly damaging the reputation of vendors or suppliers. In connection with this regulation, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data must be applied (4) and Regulation (EC) No. 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of natural persons in connection with the processing of personal data by Community bodies and institutions and on the free movement of such data (5). |
(10) |
Existing law enforcement challenges cross the borders of the European Union and the interests of Community consumers need to be protected against rogue traders based in third countries. Therefore, it is necessary to negotiate with third countries international agreements on mutual assistance in enforcing compliance with laws to protect the interests of consumers. These international agreements should be negotiated at Community level within the scope of this Regulation in order to ensure optimal protection of Community consumers and the proper functioning of law enforcement cooperation with third countries. |
(11) |
It is appropriate at the Community level to coordinate the activities of Member States in the field of law enforcement in cases of illegal acts within the Community in order to improve the application of this Regulation and increase the level and consistency of law enforcement. |
(12) |
It is appropriate at the Community level to coordinate the administrative cooperation of the Member States in areas having a Community dimension in order to improve the application of laws to protect the interests of the consumer. This coordination has already been demonstrated in the establishment of the European Extrajudicial Network. |
(13) |
If the cooperation of the Member States within the framework of this Regulation requires Community financial support, the decision to grant such support shall be made in accordance with the procedures laid down in Decision No. 20/2004/EC of the European Parliament and of the Council of 8 December 2003 on the creation of a general framework for the financing of Community measures in support of consumer protection policy in 2004-2007 (6), and especially in actions 5 and 10 set out in the annex to the said decision and future decisions. |
(14) |
Consumer organizations have an important role to play in informing and educating consumers and protecting their interests, including in dispute resolution, and should be encouraged to cooperate with the competent authorities in order to improve the application of this Regulation. |
(15) |
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 on the procedures for the exercise of implementing powers conferred on the Commission (7). |
(16) |
Effective monitoring of the application of this Regulation and the effectiveness of consumer protection requires regular reporting by Member States. |
(17) |
(18) |
Since the objective of this Regulation, namely cooperation between national law enforcement authorities for the protection of consumer interests, cannot be satisfactorily achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity set out in in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective, |
HAVE ADOPTED THIS REGULATION:
CHAPTER I
INTRODUCTORY PROVISIONS
Article 1
Target
This Regulation establishes the conditions under which the authorities in the Member States designated as competent for enforcing compliance with laws for the protection of consumer interests cooperate with each other and with the Commission with the aim of ensuring compliance with these laws and the proper functioning of the internal market and with the aim of strengthening the protection of the economic interests of consumers.
Article 2
Scope
1. The provisions of Chapters II and III on mutual assistance apply to illegal actions within the Community.
2. This regulation does not affect the Community rules for private international law, in particular the rules on jurisdiction and applicable law.
3. This Regulation does not affect the application of measures relating to judicial cooperation in criminal and civil matters in the Member States, and in particular the functioning of the European Judicial Network.
4. This regulation is without prejudice to the fulfillment of any other obligations regarding mutual assistance in the field of protection of the collective economic interests of consumers, including assistance in criminal matters, arising from other legal acts, including bilateral or multilateral treaties, by the Member States.
5. This regulation does not affect Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions in the field of consumer protection (9).
6. This Regulation is without prejudice to Community law relating to the internal market, in particular regulations relating to the free movement of goods and services.
7. Community law relating to television broadcasting is not affected by this regulation.
Article 3
Defi Nice
For the purposes of this Regulation, the following shall be understood:
a) |
"laws protecting the interests of consumers" the Directive as implemented in the national law of the Member States and the Regulation listed in the Annex; |
b) |
"wrongdoing within the Community" any act or omission that is contrary to the laws for the protection of consumer interests within the meaning of letter a) and that damages or may damage the common interests of consumers residing in a Member State or Member States other than the Member State, in which said act or omission originated or occurred; or in which the responsible seller or supplier is established; or in which evidence or assets relating to that act or omission are located; |
c) |
"competent authority" means any public authority established at the national, regional or local level specifically authorized to enforce compliance with laws to protect the interests of consumers; |
d) |
"central liaison office" means a public authority in each Member State designated as competent for coordinating the application of this Regulation in that Member State; |
e) |
"competent officer" means an officer of the authority designated as competent for the application of this Regulation; |
f) |
"requesting authority" means the competent authority that submits a request for mutual assistance; |
g) |
"requested authority" means the competent authority that receives a request for mutual assistance; |
h) |
"seller or supplier" a natural or legal person who, in terms of consumer protection laws, is acting for the purpose of running their trade, trade or craft or exercising a free profession; |
i) |
"market surveillance activity" means the activity of a competent authority aimed at establishing whether an illegal act has occurred within the Community within its local jurisdiction; |
j) |
"consumer complaint" means a reasonably substantiated statement that the seller or supplier has violated or may violate consumer protection laws; |
k) |
"common interests of consumers" the interests of several consumers who are or may be harmed by an illegal act. |
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In Prague on February 1, 2023
Manager of the company Kentino s.r.o