NAME OF THE CONSTITUTION OF THE KYRGYZ REPUBLIC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE KYRGYZ REPUBLIC

of May 21, 1998

According to the petition of Aerodromdorstroy joint-stock company for recognition of Article unconstitutional and inappropriate to Item 3 15, to Items 1 and 2 of Article 38, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of June 9, 1997 in the claim of Asfaltobeton joint-stock company to Aerodromdorstroy joint-stock company about collection of the amount 62064 som of 60 tyyyn of principal debt

Constitutional court of the Kyrgyz Republic in structure: chairman, vice-chairman of the Constitutional court Sutalinov A. A., judges - Dryzhaka P. N., Kenensariyeva Ampere-second., Osmonova K. E., Satybekova S. S., Togoybayev Zh. Zh., Esenaliyeva K. E. and Esenkanova K. E.,

Having heard the report of the judge Osmonov K. E., speeches of the representative of Aerodromdorstroy joint-stock company Ekimov M. M., representatives of the Supreme Arbitration Court of the Kyrgyz Republic of Tyurin V. I. and Medetbekova Ch. A., having researched case papers. Constitutional court of the Kyrgyz Republic

ESTABLISHED:

In the Constitutional court of the Kyrgyz Republic the petition of Aerodromdorstroy joint-stock company for recognition of Article unconstitutional and inappropriate to Item 3 15, to Items 1 and 2 of Article 38, to Item 3 of Article 84 and Item 1 of article 87 of the Constitution of the Kyrgyz Republic of law-enforcement practice of the Supreme Arbitration Court of the Kyrgyz Republic established by the decision of the Supreme Arbitration Court of the Kyrgyz Republic of June 9, 1997 in the claim of Asfaltobeton joint-stock company to Aerodromdorstroy joint-stock company about collection of the amount 62064 som of 60 tyyyn of principal debt arrived on March 13, 1998.

The Aerodromdorstroy joint-stock company brings the following arguments into reasons for the requirements. The Supreme Arbitration Court of the Kyrgyz Republic, having considered as the Trial Court, case on the claim of Asfaltobeton joint-stock company, the decision of June 9, 1997 exacted from Aerodromdorstroy joint-stock company for benefit of Asfaltobeton joint-stock company 62064 som of 60 tyyyn of principal debt, thereby violated Item 2 of Article 20 of the Arbitral Procedure Code of the Kyrgyz Republic.

The Supreme Arbitration Court of the Kyrgyz Republic since April 16, 1996, from the moment of adoption of the Arbitral Procedure Code, has no right to accept and consider actions for declaration on the first instance and to pass according to them decisions as these actions of the Supreme Arbitration Court contradict Item 1 of article 87 of the Constitution of the Kyrgyz Republic which determined that the court has no right to apply the precept of law contradicting the Constitution.

In judicial session the representative of Aerodromdorstroy joint-stock company Ekimov M. M. having completely supported the petition, asks it to satisfy. Representatives of the Supreme Arbitration Court of the Kyrgyz Republic Tyurin V. I. and Medetbekova Ch. A. without having agreed with the petition, ask to leave it without satisfaction and to stop the constitutional legal proceedings.

Constitutional court of the Kyrgyz Republic, having discussed arguments of the parties and having researched case papers, considers the petition subject to satisfaction on the following bases.

Apparently from the provided materials, the Supreme Arbitration Court of the Kyrgyz Republic accepted on May 21, 1997 to the production on the first instance and satisfied with the decision of June 9, 1997 the claim of Asfaltobeton joint-stock company to Aerodromdorstroy joint-stock company about collection of the amount 62064 som of 60 tyyyn of principal debt and 3007 som of 58 tyyyn of court costs.

In Item 3 of substantive provisions of the decision of the Supreme Arbitration Court of the Kyrgyz Republic of June 9, 1997 it is specified that the decision of the Supreme Arbitration Court of the Kyrgyz Republic becomes effective from the moment of its acceptance. The Supreme Arbitration Court of the Kyrgyz Republic determination of July 28, 1997 accepted to the production the writ of appeal of Aerodromdorstroy joint-stock company on the specified decision of the Supreme Arbitration Court of the Kyrgyz Republic and determination of August 5, 1997 production according to this claim stopped with reference to the solution of the Constitutional court of the Kyrgyz Republic of July 11, 1997 about recognition unconstitutional Article 162, 164 and 166 Arbitral Procedure Codes of the Kyrgyz Republic.

Having accepted to the production on the first instance the action for declaration of Asfaltobeton joint-stock company and having considered it according to the procedure which is not provided by the Arbitral Procedure Code of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic violated requirements of Items 3 and 4 of article 79 of the Constitution of the Kyrgyz Republic according to which the organization and procedure for activity of the courts are determined by the law, and the judge submits only to the Constitution and the law.

Thereby, the Supreme Arbitration Court of the Kyrgyz Republic breaks not violated right of Aerodromdorstroy joint-stock company to protection guaranteed by Item 2 of article 88 of the Constitution of the Kyrgyz Republic at any stage of process of consideration of legal case.

According to Item 2 of article 7 of the Constitution of the Kyrgyz Republic, the Supreme Arbitration Court of the Kyrgyz Republic represents and performs the government in the Kyrgyz Republic within the powers established by the Constitution. By Item 3 of article 84 of the Constitution of the Kyrgyz Republic the Supreme Arbitration Court of the Kyrgyz Republic is granted the right to exercise supervision of judicial activities of Arbitration Courts of areas and the city of Bishkek, and permission on the first instance of the disputes arising in the economic sphere between business entities Article 20 of the Arbitral Procedure Code of the Kyrgyz Republic is carried to competence of Arbitration Courts of areas and the city of Bishkek.

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