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od 15.4.2007
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Čížek V.: Supreme Court on a Guarantee within a Holding Group: successfully for a second time?
In its recent decision dated 22 April 2009, file no. 29 Cdo 3276/2008, the Supreme Court picked up on its previous decision dated 30 August 2005, file no. 29 Odo 996/2004, with respect to a requirement on execution of a court appointed expert report for purpose of determination of a guarantee value pursuant to Section 196a (5) Commercial Code. Although Section 196a (3) Commercial Code expressly applies on provision of a guarantee, the Supreme Court reaffirmed that non-execution of a court appointed expert report for purpose of determination of a guarantee value does not render the guarantee invalid since the requirement on determination of a guarantee value on basis of a court appointed expert report is not applicable to a provision of a guarantee.
Since the Supreme Court's position should be extensively reflected into the existing mechanism of corporate groups financing I shall attempt to appreciate the reasoning background and conclusions derived by the Supreme Court in the respective decision. The decision shall be evaluated on several levels - theoretical-legal level, level of suitability, completeness and accuracy of the Supreme Court's considerations and constitutional-legal level - in order to offer a complex view and assessment of the respective decision.
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