Document from CIS Legislation database © 2003-2022 SojuzPravoInform LLC

SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of January 5, 2005 No. P-182/2005

About legal regulation of procedure and terms of return of shares to persons which were disposed from the organizations of citizens builders

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., judges Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Filipchik R. I., G.B. Cone, Shuklina V. Z. considered based on Article 40 and part one of article 116 of the Constitution of the Republic of Belarus addresses of citizens concerning constitutionality acting procedure and terms of return of means in case of the termination of participation in construction of premises.

In addresses, in particular, it is noted that questions of return of money to persons who were disposed from the organizations of citizens builders for the different reasons including because of considerable rise in price of construction cost in comparison with originally stipulated, properly are not settled and their decision depends on acceptance of new citizens builders instead of disposed. Normative established deadlines of return of money are absent.

The problem of return of shares to the citizens who were disposed from the organizations of citizens builders was already considered by the Constitutional Court in 2001. On June 12, 2001 the decision in which the Constitutional Court noted that the indexations of the shares returned to the citizens in case of their exit from housing cooperatives approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of June 6, 1996 No. 375, terms of return of the specified fees provided by Provisional regulations for procedure do not consider feature of forming and expenditure of financial resources of housing cooperatives that infringes upon the rights and legitimate interests of members of cooperatives was made, worsens functioning of housing cooperatives as legal entities, completion of construction of apartment houses and their input in operation detains.

In this decision the Constitutional Court suggested Council of Ministers of the Republic of Belarus to determine such procedure for return of shares which would provide legal protection not only the disposed, but also remaining members of housing cooperatives, other organizations of citizens builders; provide possible mechanisms of rendering assistance to housing cooperatives, other organizations of citizens builders in the solution of the questions concerning return of shares to the citizens who were disposed from members of cooperative (other organizations of citizens builders) taking into account respectfulness of the reasons of disposal deserving attention of other circumstances; if necessary to prepare and make relevant proposals to the legislator.

The resolution of Council of Ministers of the Republic of Belarus of December 1, 2001 No. 1735 "About procedure and terms of return (introduction) of the means which arrived from different sources in case of the termination (renewal) of participation in construction (reconstruction) of premises" the resolution of the Cabinet of Ministers of the Republic of Belarus of June 6, 1996 "About approval of Provisional regulations for procedure for indexation of the shares returned to citizens in case of their exit from housing cooperatives" was declared No. 375 invalid since January 1, 2002. At the same time the Ministry of Architecture with participation of regional executive committees, the Minsk Gorispolkom, open joint stock company "Was entrusted to develop Belarusbank savings bank also in coordination with the Ministry of Economics, by the Ministry of Finance to approve regulations on procedure and terms of return (introduction) of the means which arrived from different sources in case of the termination (renewal) of participation in construction (reconstruction) of premises with the term of its introduction in action since January 1, 2002.

No. 3 the Regulations on procedure and terms of return (introduction) of the means which arrived from different sources in case of the termination (renewal) of participation in construction (reconstruction) of premises (further - the Provision) were approved by the resolution of the Ministry of Architecture of the Republic of Belarus of January 28, 2002.

Item 7 of the Provision provides that in case of voluntary exit or the investor's exception of the organization of citizens builders (participants of shared-equity construction) general meeting of the organization of citizens builders (authorized body) makes the decision on exception it from structure of the organization of citizens builders (on agreement cancelation with the participant of shared-equity construction) and on return of the deposited funds on accessory. The returned amount of means is subject to indexation according to the procedure, provided by the Provision, taking into account index of the change in value of installation and construction works approved on payment date.

According to Provision Item 18 calculation of the fees of the investor which are subject to return affirms the organization of citizens builders (authorized body) within seven days after decision making about the investor's exception of the organization of citizens builders (agreement cancelation with the participant of shared-equity construction).

The constitutional court notes that calculation about which it there is a speech in Provision Item 18 in practice is understood as not real calculation with the disposed organization member of citizens builders, and calculation of the size of the amounts followed to payment.

The greatest possible term of contributing by the new investor is determined by body, authorized to make the decision on inclusion of the new investor (Provision Item 22) therefore payment of the amounts to the disposed member is removed for the specified term.

The analysis of the operating procedure and terms of return of means to the disposed organization member of citizens builders in case of the termination of participation in construction demonstrates that the questions raised by the Constitutional Court in the decision of June 12, 2001 did not find due permission owing to what the rights and legitimate interests of citizens - the former members of the organizations of citizens builders to whom their own means timely do not return are violated. So far the efficient mechanism of forming of means in case of not introduction of new members (instead of disposed) in the organization of citizens builders throughout long time is not determined that finally affects also financial position of the organization of citizens builders, delay of speed of construction because of insufficient funding.

Legal regulation of relations of citizens builders and HCC, other similar organizations requires streamlining. The approximate charter of housing cooperative approved by the resolution of Council of Ministers of the Republic of Belarus of November 15, 1984 No. 400, became obviously outdated, its regulations will not be approved with regulations of new Civil and Housing codes, other acts of the legislation of the Republic of Belarus. Permission of many questions at the level of constituent documents of the organization of citizens builders is not effective as in such cases also legitimate interests of citizens are not provided in due measure of the right.

Warning!!!

This is not a full text of document! Document shown in Demo mode!

If you have active License, please Login, or get License for Full Access.

With Full access you can get: full text of document, original text of document in Russian, attachments (if exist) and see History and Statistics of your work.

Get License for Full Access Now

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

Effectively work with search system

Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system

Get help

If you cannot find the required document, or you do not know where to begin, go to Help section.

In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.

You also may open the section Frequently asked questions. This section provides answers to questions set by users.

Search engine created by SojuzPravoInform LLC. UI/UX design by Intelliants.