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DETERMINATION OF CK OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of September 20, 1995

The transaction which is not conforming to the requirement of the law or other legal act is insignificant if the law does not provide other effects of violation. The judgment is cancelled as based on inadmissible proofs

(extraction)

"HMH Hamburger Metal Handel GMBH" made in court the claim to Northwest customs authority for return 100 tons of nickel and 25 tons of copper acquired according to the purchase and sale agreement with Ryad Ltd which the customs detained, having seized on metal.

The prosecutor of Northwest transport prosecutor's office filed petition for recognition of the invalid transaction of purchase and sale of metal, referring to the fact that the transaction was illegal.

The judicial board on civil cases of the St. Petersburg city court which considered case on the first instance refused the requirement of the prosecutor and satisfied the claim of firm.

Judicial board on civil cases of the Supreme Court of the Russian Federation on September 20, 1995, having considered case on the writ of appeal of customs authority and the prosecutor's appeal of the prosecutor of Northwest customs prosecutor's office, cancelled the decision, having specified the following.

Owing to Art. 168 of the Civil Code of the Russian Federation (1994) the transaction which is not conforming to requirements of the law or other legal act is insignificant if the law does not provide other effects of violation. (According to Art. 9 of the Federal Law of October 21, 1994. "About enforcement of part one of the Civil code of the Russian Federation", Code regulations about the bases and effects of invalidity of transactions (the Art. of the Art. 162, 165of - 180) are applied to transactions, requirements about recognition invalid and which effects of invalidity are considered by court, Arbitration Court or reference tribunal after January 1, 1995, irrespective of time of making of the corresponding transactions.)

Apparently from case, on August 24, 1994 representatives Ryad Ltd and the German firm "HMH Hamburger Metal Handel GMBH" signed the purchase and sale agreement of 100 tons of nickel and 25 tons of copper.

According to item 4 of the order of the Government of the Russian Federation of July 1, 1994. "About measures for enhancement of state regulation of commodity export and services" for the purpose of ensuring the state export control of strategically important goods specified in appendix to this resolution since July 1, 1994 registration of export contracts of these goods is entered. The omission of these goods through customs border is performed only under the contracts which were registered.

Considering that this metal belongs to strategically important goods, concerning which the rule of the omission through customs border only under the contracts which were registered in the absence of data on it is established, customs authorities did not pass this load through border. The St. Petersburg city court refused the requirement of the prosecutor and satisfied the claim of firm for return of the metal detained by customs, referring to the fact that this agreement is not among foreign trade (export) as, according to the statement of firm, nickel and copper did not intend to export abroad of Russia, and were subject to conversion in its territory.

However it is impossible to recognize conclusions of city court reasonable.

In meeting of Judicial board on civil cases of the Supreme Court of the Russian Federation representatives of firm declared that they have no contracts with the companies, firms in the Russian Federation for conversion, transfer, use of nickel and copper in the territory of Russia.

In case papers there are no admissible proofs.

The court accepted as proofs only photocopies of documents, including the purchase and sale agreement which compliance to originals is not certified, and in judicial session reliability of photocopies of documents to originals was not checked, transfer of documents from German into Russian is made by person who is not warned about responsibility according to Art. 181 of UK RSFSR for obviously incorrect translation (the Art. 152 GPK of RSFSR).

The court properly did not find out whether persons which signed the purchase and sale agreement, powers on the conclusion of this transaction for what amount metal was sold had and whether really the German firm buyer paid the caused amount of money of Ryad Ltd - to the seller.

Conclusions of court on these circumstances are based on insufficiently full checked case papers.

Documents which the court accepted as the proof of payment under the agreement of cost of metal in originals in case are absent, there are only their photocopies which are not certified in accordance with the established procedure. There are no data that the court surveyed originals of documents in the protocol of judicial session.

The parties which signed the agreement offered different and contradictory explanations on the subject of how metal payment is made. Due to the violations of the Art. of the Art. allowed by court 14, of 43, of 50, of 54, 152 GPK of RSFSR the decision are subject to cancellation with the direction of case on new judicial review.

 

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