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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of November 6, 2009 No. 9

About court practice of consideration of civil cases about recognition of transactions invalid

For the purpose of ensuring the correct and identical application by courts of the legislation by consideration of civil cases on recognition of transactions invalid the Plenum of the Supreme Court of Ukraine POSTANOVLYAET to make to courts such explanations:

1. The civil relations concerning invalidity of transactions are governed by the Civil code of Ukraine (further - group of companies), the Land code of Ukraine, the Family code of Ukraine, the Law of Ukraine of May 12, 1991 N 1023-XII "About consumer protection" (in edition of the Law of December 1, 2005 N 3161-IV), the Law of Ukraine of October 6, 1998 N 161-XIV "About lease of land" (in edition of the Law of October 2, 2003 N 1211-IV) and other acts of the legislation.

By hearing of cases about recognition of transactions invalid courts depending on subject and the bases of the claim shall apply regulations of the substantive right which govern the corresponding relations, and based on these regulations to solve cases.

2. Courts need to consider that according to Articles 4, of 10 and 203 groups of companies contents of the transaction cannot contradict group of companies, other laws of Ukraine which are adopted according to the Constitution of Ukraine and group of companies, international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine, to acts of the President of Ukraine, resolutions of the Cabinet of Ministers of Ukraine, acts of other public authorities of Ukraine, authorities of the Autonomous Republic of Crimea in cases and in the borders established by the Constitution of Ukraine and the law and also to moral bases of society.

Contents of the transaction shall not contradict provisions also others, except acts of the civil legislation, regulatory legal acts adopted according to the Constitution of Ukraine (Article 1, 8 Constitutions of Ukraine).

Compliance or discrepancy of the transaction to requirements of the legislation shall be estimated by court according to the legislation which affected the transaction moment.

3. By consideration of dispute the court can make the decision on interpretation of contents of the transaction only upon the demand of one or both parties of the transaction or their legal successors (Article 213 of Civil Code, Article 37 of the Code of civil procedure of Ukraine, further - GPK) according to the procedure of claim production.

4. Courts according to Article 215 of group of companies need to differentiate types of invalidity of transactions: the insignificant transaction - if their invalidity is established by the law (Article part one 219, Article part one 220, Article 224 part one and so forth), and challenged - if their invalidity is directly not established by the law, but one of the parties or other interested person denies their reality on the bases established by the law (Article part two 222, Article part two 223, part one of Article 225 of group of companies and so forth).

The insignificant transaction is invalid because of discrepancy to its requirements of the law and does not need recognition by its such court. The challenged transaction can be acknowledged invalid only by a court decision.

5. According to Articles 215 and 216 of group of companies courts consider cases on claims: about recognitions of the challenged transaction invalid and application of consequences of its invalidity, about application of consequences of invalidity of the insignificant transaction.

The requirement about establishment of pettiness of the transaction is subject to consideration in case of availability of the corresponding dispute. Such claim can separately be made, without application of consequences of invalidity of the insignificant transaction. In this case in substantive provisions of the judgment the court specifies about pettiness of the transaction or refusal in it.

The requirement about application of consequences of invalidity of the transaction can be declared as along with the requirement about recognitions of the challenged transaction invalid, and in the form of the independent requirement in case of pettiness of the transaction and judgment availability recognition of the transaction invalid. Its termination as it is mutually exclusive requirements cannot be consequence of recognition of the transaction (agreement) of invalid.

If the claimant refers to transaction pettiness for reasons for other declared requirement, the court has no right to refer to lack of the judgment on establishment of pettiness of the transaction, and shall give assessment to such arguments of the claimant.

According to Articles 215 and 216 of group of companies the requirement about recognition of the challenged transaction invalid and about application of consequences of its invalidity, and also the requirement about application of consequences of invalidity of the insignificant transaction can be declared to both one of the parties of the transaction, and other interested person whose rights and legitimate interests are violated by transaction.

6. Requirements about recognition of the challenged transaction invalid and application of consequences of its invalidity, about application of consequences of invalidity of the insignificant transaction are considered in claim production according to the procedure of civil legal proceedings according to requirements of Article 15 GPK.

By the same rules the specified requirements are considered and if the party of the transaction is the subject of powers of authority, except requirements about recognition invalid the administrative agreement.

7. The transaction can be acknowledged invalid only for the reasons determined by the law and using the consequences of invalidity provided by the law.

If during consideration of dispute on recognition of the transaction invalid as challenged and application of consequences of its invalidity availability of the bases will be established, stipulated by the legislation to consider such transaction insignificant, court, specifying about pettiness of such transaction, at the same time applies consequences of invalidity of the insignificant transaction.

On contents of Article 216 of group of companies and proceeding from general bases of the civil legislation the court can apply on own initiative restitution as a result of invalidity of the challenged transaction. The court applies other consequences of invalidity of the challenged transaction (indemnification, moral damage and so forth) according to Article 11 GPK.

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