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RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of April 30, 2013 No. 3

About some questions of removal of private determinations and directions of messages (information)

Plenum of Supreme Economic Court of the Republic of Belarus, having considered materials of studying of court practice of removal by economic courts of private determinations in economic and administrative legal proceedings, for the purpose of ensuring the correct and uniform application of the legislation in case of removal of private determinations, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to make the following explanations.

1. According to part one of article 60 of the Constitution of the Republic of Belarus protection of its rights and freedoms by competent, independent and just trial in the terms determined by the law is guaranteed to everyone.

2. Economic courts in the Republic of Belarus (further - economic courts) are urged to protect the Republic of Belarus guaranteed by the Constitution and other acts of the legislation the personal rights and freedoms, the social and economic and political rights of citizens, the constitutional system of the Republic of Belarus, the state and public concerns, the rights of the organizations, individual entrepreneurs, and also to provide the correct application of the legislation when implementing justice, to promote strengthening of legality and the prevention of offenses (part two of article 6 of the Code of the Republic of Belarus about judicial system and the status of judges (further - the Code about judicial system and the status of judges).

Economic courts perform justice by means of:

economic legal proceedings in the sphere of business and other economic (economic) activity according to the Economic Procedure Code of the Republic of Belarus (further - HPK), and on cases on economic insolvency (bankruptcy) also taking into account the features provided by the Law of the Republic of Belarus of July 13, 2012 "About economic insolvency (bankruptcy)" (The national legal Internet portal of the Republic of Belarus, 24.07. 2012, 2/1967) (further - the Law on economic insolvency (bankruptcy);

administrative legal proceedings on cases on administrative offenses according to the Procedural and executive code of the Republic of Belarus about administrative offenses (further - PIKOAP).

3. The judge has the right to demand from state bodies, other organizations, and also from officials and citizens of execution of the court decrees connected with implementation of the obligations (the paragraph of the second part two of article 89 of the Code about judicial system and the status of judges) assigned to it.

The economic court (judge) has the right to take out private determination when implementing:

economic legal proceedings on the bases and according to the procedure, stipulated in Article 215 HPK, article 20 of the Law on economic insolvency (bankruptcy);

administrative legal proceedings on the bases and according to the procedure, stipulated in Article 10.31 PIKOAP.

Chapter 1. Application of article 215 HPK

4. According to part one of article 215 HPK in case of identification by consideration of dispute of violation by legal entities, individual entrepreneurs, state bodies, local authorities and self-government, officials or citizens of legislative and other regulatory legal acts in their activities the economic court has the right to take out private determination.

Private determination under article 215 HPK can be taken out by economic court of the first, appeal, cassation and supervising instances by all types of legal proceedings provided by HPK on any case irrespective of being of dispute (case), at all stages of legal proceedings (including enforcement proceeding stage), certain HPK, the Law on economic insolvency (bankruptcy).

The stipulated in Article 215 HPK right of economic court to take out private determination is not connected with pronouncement of the court decree on the substance of dispute (case), can be realized, for example, when leaving the claim without consideration, in case of suit abatement, and also according to competence of economic court, certain article 326 HPK, at enforcement proceeding stage.

5. The basis for removal of private determination is the violation of requirements of legislative and other regulatory legal acts by legal entities, individual entrepreneurs, state bodies, local authorities revealed by economic court when considering the case and concerning the facts of the case and self-government, officials or citizens.

In case of application of article 215 HPK it is necessary to consider that:

private determination can be directed by economic court of higher instance to the chairman of economic court about established facts of non-compliance with court by structure when considering the case economic procedural or other legislation. Cancellation of the court decree by higher degree of jurisdiction does not interfere with removal of private determination;

private determination can be directed by economic court to the chairman of economic court about the facts of non-compliance with economic procedural or other legislation by the legal executive established by consideration of the claim (protest) to actions (failure to act) of the legal executive. The grievance settlement (protest) does not interfere with removal of private determination.

6. According to parts one and the second article 27 HPK are obligatory:

the court decrees which took legal effect - for all legal entities, the organizations who are not legal entities, individual entrepreneurs and citizens;

legal orders, requirements, orders, challenges and other judicial addresses - for all persons to whom they are addressed.

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