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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of January 30, 2004 No. Z-168/2004

About compliance of the Constitution of the Republic of Belarus of Item 3 of Article 760 of the Civil code of the Republic of Belarus

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., Vorobey G. A. judges., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z.

with participation of representatives:

The Houses of Representatives of National assembly of the Republic of Belarus - Arkhipova A. M., the chairman of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus by the legislation and judicial legal issues; Morozova Yu. A., member of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus on human rights, national relations and mass media; Chuprakova A. V., adviser-consultant of department of the civil legislation of the Main expert legal department of the Secretariat of the House of Representatives of National assembly of the Republic of Belarus;

Council of the Republic of National assembly of the Republic of Belarusbury V. V., head of department of civil, social and economic laws of the Main expert legal department of the Secretariat of Council of the Republic of National assembly of the Republic of Belarus

considered in proceeding in open court case "About compliance of the Constitution of the Republic of Belarus of Item 3 of Article 760 of the Civil code of the Republic of Belarus".

Took part in judicial session:

Vyshkevich V. N. is the vice-chairman of the Supreme Court of the Republic of Belarus; Kamenkov V. S. is the Chairman of Supreme Economic Court of the Republic of Belarus; Ivanovsky A. V. - deputy attorney general of the Republic of Belarus; Mickiewicz V.V.zamestitel of the Minister of Justice of the Republic of Belarus.

Item 3 of Article 760 of the Civil code of the Republic of Belarus was subject to check (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, Art. No. 7-9, 101), it is provided by which that the foreign currency and currency values can be the subject of the agreement of loan in the territory of the Republic of Belarus with observance of rules of Articles 141, 142 and 298 these Codes.

In the offer on check of constitutionality of Item 3 of Article 760 of the Civil code (further - group of companies) the House of Representatives specified that the understanding of this regulation in law-enforcement practice testifies to uncertainty and ambiguity of the legal instructions containing in it and is treated as prohibition of use of foreign currency in case of the conclusion of loan agreements between citizens in the absence of special legislative regulation of cases, procedure and conditions of such use. In the offer it is also noted that though before acceptance and entry into force of the Law "About Currency Control and Currency Exchange Control" (The national register of legal acts of the Republic of Belarus, 2003, 85, 2/978) use of foreign currency in case of the conclusion by physical persons of loan agreements was not settled No., it does not testify to prohibition from the state on implementation of the actions allowed by group of companies. With respect thereto the House of Representatives considers that Item 3 of Article 760 of group of companies in the sense given it by practice of application contradicts requirements of the Constitution.

Besides, the House of Representatives specified that significant amount of the cases connected with the loan agreements signed before entry into force of article 11 of the Law "About Currency Control and Currency Exchange Control" is not considered yet. With respect thereto in the offer it is noted that as parts three of article 11 of this Law resolving use of foreign currency in loan agreements, the legislator did not give retroactive effect, by consideration of the specified cases Item 3 of Article 760 of group of companies which uncertainty will lead to further violation of constitutional rights of citizens will be applied.

Having heard the judge-speaker Shuklin V. Z., messages of agents of the parties, the specialist, having analysed relevant provisions of the Constitution, Civil and Bank codes, the Law "About Currency Control and Currency Exchange Control" and other regulatory legal acts of the Republic of Belarus, having studied case papers and court practice, the Constitutional Court established the following.

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