of January 16, 2007 No. 19/12/06
About claiming damages
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 15.03.2007 it is refused to open production on review)
The Supreme Economic Court of Ukraine as a part of board of judges:
chairman: Udovichenka O. S.
judges: Panova I. Yu., Yatsenko O. V. having considered the writ of appeal of Unikon Ltd on the resolution of the Zaporizhia Economic Court of Appeal of 26.07.2006 on case N19/12/06 of economic court of the Zaporizhia region on the claim of Unikon Ltd to JSC Dneprenergo about claiming damages
representatives took part in judicial session:
Defendant: Formagey O. L.
By the decision of economic court of the Zaporizhia region of 30.01.2006 (judge Datsenko L. I) to the limited liability company to Unikon LTD reorganized into Unikon Ltd (further - the claimant) it was refused satisfaction of the claim to Dneprenergo open joint stock company (further - JSC Dneprenergo) about collection of 3% per annum and amounts of debt taking into account the inflation index in the amount of 67115, of 62 UAH.
The resolution of the Zaporizhia Economic Court of Appeal of 26.07.2006 (the judge: Radchenko O. P., Krichmarzhevsky VA., Hutorna V. M.) the decision of economic court of the Zaporizhia region of 30.01.2006 on case N19/12/06 is left without changes.
The claimant appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which he asks the resolution of the Zaporizhia Economic Court of Appeal of 26.07.2006 and the decision of economic court of the Zaporizhia region of 30.01.2006 on case N9/12/06 to cancel and make the new decision as which to recognize monetary claims of Unikon Ltd in JSC Dneprenergo in the amount of 67115, of 62 UAH.
In reasons for the writ of appeal the complainant refers to violation by Appeal Court in case of adoption of the appealed resolution of regulations of the substantive right, namely: Art. 214 of group of companies of the Ukrainian SSR, the p. 2 of Art. 625 of Civil Code of Ukraine and Art. 12 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" (further the Law).
Judicial board, having considered available case papers, having discussed arguments of the writ of appeal, having checked legal evaluation of the facts of the case and completeness of their establishment, having researched correctness of application by courts of regulations of substantive and procedural law came to conclusion that the writ of appeal is not subject to satisfaction for the following reasons.
Rejecting monetary claims of the claimant regarding requirements about collection of the amounts of inflation charges and annual interest rates, the Trial Court recognized what these amounts is not subject to collection from the defendant owing to provisions of part four of article 12 of the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" (further - the Law) as they are sanctions for failure to carry out or unseemly accomplishment of monetary commitments what the Appeal Court agreed with.
However it is impossible to agree with such conclusion as it is based on vicious interpretation by court of the specified precept of law.
According to paragraph 4 of the p. 4 of Art. 12 of the Law during operation of the moratorium on satisfaction of requirements of creditors are not charged penalty (penalty, penalty fee), other sanctions for failure to carry out or unseemly accomplishment of monetary commitments and obligations about payment of insurance premiums for obligatory national pension insurance and other types of obligatory national social insurance, taxes and fees (obligatory payments) are not applied. By determination of the terms applied in this Law, the monetary commitment is obligations of the debtor to pay the creditor certain sum of money according to the civil agreement and on other bases provided by the civil legislation of Ukraine (paragraph 7 of the Art. 1).
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