Několik kritických poznámek k právní úpravě bytových družstev

In the introductory part, the article points out a number of imperfections in the legal regulation of housing cooperatives. This regulation is to a considerable extent incomplete or missing, or it is inappropriate or even unconstitutional. Negative consequences of this situation particularly include legal uncertainty, which in case of housing cooperatives and their members may raise doubts about the rule of law in the Czech Republic in terms of state capability to ensure the cooperative members the protection of their interests and rights. The drawbacks further examined are particularly concerned with some provisions of the Commercial Code and the Act No. 72/ 94 Coll. on fiat ownership. Part I is concerned with housing cooperatives in general. Unlike business companies whose individual types are separately regulated in the Commercial Code, the cooperatives and their individual types (agricultural, manufacturing, consumer, housing and others) have only one form of regulation in the Commercial Code. Yet the Commercial Code itself employs the term of a “housing cooperative” (ss. 230 and 232 [2]) without even giving a criterion to distinguish between a housing cooperative and another type of cooperative. Not even the current Cooperative Transformation Act No. 42/92 Coll. as subsequently amended, which regulates the transformation of agricultural, manufacturing, consumer and other cooperatives, has set out such a criterion. Some cooperatives – housing by nature – do not consider themselves as housing and refuse to implement the provisions of the Commercial Code relating specifically to housing cooperatives. In resolving this question we can adopt two approaches. One is based on the fact that in the Act No. 176/90 Coll. on housing, consumer, manufacturing and other cooperatives (this law was abolished on 31 of December 1991 by the Commercial Code) the criterion for the cooperative classification has been laid down – the object of the cooperative activity was the determinant. Apart from this, another criterion – that of “the purpose for which the cooperative was founded” can be employed. Section 221 (1) of the Commercial Code can thus be applied. It would be more suitable, however, for the law to determine this criterion expressly. In the following passage a fundamental difference between the contents of the term “housing cooperative” and that of an agricultural, manufacturing, consumer and other cooperatives is illustrated by a specific example, i.e. a specific ruling of the Supreme Court of the Czech Republic. The analysis shows that a cooperative member has a number of rights guaranteed by law. These include e.g. the right to inherit the membership interest and to rent the fiat under s. 706 (2) of the Civil Code, the right to assign one’s own membership rights including the right of lease onto another person without the approval of the cooperative according to s. 230 of the Commercial Code, the right to transfer the fiat ownership onto a member of the cooperative if he be the tenant of the fiat in accordance with sections 23 and 24 (1, 2) of the Act No. 72/94 Coll. A member – tenant has specific property rights in relation to the individual fiat (in the building housing cooperatives it is a membership interest and the paying back of the credit granted for the construction of the building in proportion to the individual fiat). Therefore it is necessary to take all the specificities of this type of a cooperative into account. Even the term a “housing cooperative” is a general term. The following individual types of housing cooperatives can be considered as such: a) people’s housing cooperatives (LBD) – in detail defined in s. 24 (2) of the Act No. 72/94 Coll.; b) building housing cooperatives (SBD) – defined in s. 24 (1) of the Act No. 72/94 Coll.; c) housing cooperatives of the tenants of residential and non-residential premises – these are especially the cooperatives created with the aim of buying the whole building from the community or another proprietor by the cooperative and eventually transferring the fiats into the individual ownership or transferring the house into the co-ownership of the cooperative members; d) housing cooperatives of the owners of the fiats and non-residential premises – the cooperatives created for the purpose of keeping the building under the Act No. 72/94 Coll.; e) other housing cooperatives. In part II certain imperfections in the legal regulation of housing cooperatives are pointed out. These especially involve the following ones: The problem of the object of activity in relation to the trade licencing law. The housing cooperative, although it acts under s. 2 (2) of the Commercial Code as an entrepreneur, does not comply with all the conditions laid down for carryig on business by s. 2 (1) of the Commercial Code. If the cooperative is engaged in an activity other than that expressly referred to by s. 4 of the Trade Licencing Act (the lease of flats and non-residential premises and rendering fundamental services attached to the lease), and this activity is intended exclusively for its members and is not aimed at profit making, then, in the author’s opinion, such a cooperative should need no trade authorization in order to pursue such activities. 2) The contents of the cooperative’s articles of association are not subject to the control by the registration court and consequently they often include provisions contrary to law (e.g. s. 230 of the Commercial Code). The author suggests that the Commercial Code be amended by a provision stipulating that the registration court should return one of the copies stamped to the cooperative after having checked the contents of the articles of association. 3) It is unclear to what extent and whether at all the provisions of s. 63 of the Commercial Code are applicable to housing cooperatives after the amendment by the Act No. 142/96 Coll. 4) Some problems arising in the so called small cooperatives when registering in the Commercial Register. In part III, special attention is paid to the legal regulation of the allocation of a part of the cooperative. The issue is dealt with in general terms. It shows how reasonable it is to have an arrangement of allocating a part of the cooperative (in all types of cooperatives) in order to provide a remedy for harms done by unifying the cooperatives under the totalitarian regime. The amendment has been provided for in s. 49 of the Act No. 176/90 Call. Its duration was limited by June 30, 1991. As to this regulation, two remarks should be made. One relates to the competence of courts in hearing property disputes. Judicial practice has settled that the competent courts are regional courts under s. 9 (3) (b) (aa) of the Civil Code of Procedure. The question which has not yet been completely resolved is which organizational units of the cooperative shall be affected by the possible allocation of part of the cooperative – especially in relation to repetitious property transfers that followed the unification of cooperatives in the past. Following the adoption of the Commercial Code in 1991 and the Charter of Fundamental Human Rights and Liberties on 9 of January 1991, the provisions concerning further “allocation” in s. 29 of the Act No. 72/94 Coll. became unconstitutional. In relation to s. 29 of the Act No. 72/94 Coll. several interesting court decisions relating to the following issues are described: a) The competence of courts in deciding the property disputes relating to the property allocation. Under s. 9 (3) (b) (aa) of the Civil Code of Procedure the competent courts are regional courts with commercial jurisdiction. b) The issue of the burden of proof that rests with the newly established cooperatives when they register in the Commercial Register as well as an obligation of the registration court to require the presentation of the appropriate documents and to verify them. c) Participation of earlier established cooperatives in the process of registering newly established cooperatives in the Commercial Register according to s. 94 of the Civil Code of Procedure. The Supreme Court is Prague ruled that a previously existing cooperative was not a party to the proceedings under s. 94 of the Civil Code of Procedure. For this, the Court supplied reasoning that can hardly be agreed to. Other courts, however, have arrived at different conclusions. Part IV is devoted to the analysis of the unconstitutional character of s. 29 of the Act No. 72/1994 Coll. Its provisions concerning the transfer of membership to a newly established cooperative without the member’s approval violate Article 1 and Article 4 of the Charter. Further s. 29 is inconsistent with Article 11, par. 4 of the Charter because it provides for expropriation of property without compensation. The unconstitutional character of the above provisions is also examined on the basis of the Constitutional Court finding published in the 1996 Collection of Laws under No. 280. The article recommends that the Constitutional Court deal with this issue.