Dear ladies and gentlemen,
in attachment please find English/Czech version of newsletter about these topics: Act on Mediation and Moderation of contractual interest on late payment.
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Yours sincerely, Accace team
Act on Mediation
On September 1, 2012, an Act No. 202/2012, on mediation and amendment of some other acts, becomes effective.
This statute introduces a possibility to settle a conflict between parties by an out-of-court way with a participation of a mediator – a person listed in a list of mediators.
Mediation may also be carried out before court within a conciliation procedure. Settlement of a conflict through the mediation presupposes conclusion on a contract on mediation between the parties to the conflict and a mediator. The mediation may be terminated at any time and it is also possible for the parties to claim their rights at court at the same time.
Commencement of the mediation causes interruption of limitation periods in the same extend as commencement of a judicial case. Mediation should aim at concluding a mediation agreement specifying the parties’ mutual rights and obligations.
Moderation of contractual interest on late payment
One of the long-term contentious issues regarding the possibility of moderation of contractual interest on late payment´s amount was decided by the Supreme Court on 16 May 2012 in the judgment No. 31 Cdo 717/2010 negatively.
According to the court´s opinion, only invalidity of the whole provision may be declared but the court can not modify the amount of contractual interest on late payment. The Supreme Court in this matter reviewed not only the amount of contractual interest on late payment in relation to the statutory one, but also the specific circumstances of the case.
Account must be taken, inter alia, that in the Commercial Code is directory regulation (as opposed to mandatory civil law legislation), allowing the parties to agree on the amount of the interest on late payment. The Supreme Court´s decision also notes that only the amount of the contractual penalty can be moderated, in accordance with the provisions of § 301 of the Commercial Code, but not the amount of contractual interest on late payment. When considering the provision of contractual interest on late payment from the point of view of the provision of § 39 of the Civil Code, the contractual interest on late payment may be assessed in terms of accordance or contradiction to good morals as valid or invalid but the amount of contractual interest on late payment going beyond good morals can not be assessed.
In the event that the contractual interest on late payment are received as invalid, it is necessary to solve the creditor’s right to legal interest on late payment.