of November 26, 2004 No. 10-0404/2622
Adoption by economic court of the decision on the rights and obligations of persons who are not recruited in case is the basis to its cancellation
The claimant - GAZhK "Uzbekistan Temir Yullar" (further GAZhK) appealed to economic court with the claim to the defendant - to the State Committee of the Republic of Uzbekistan on demonopolization and development of the competition about recognition invalid decisions and instructions of N3 of March 3, 2004.
Claims are satisfied by the decision of economic court.
In appellate instance case was not considered.
Without having agreed with the judgment, the defendant appealed to the Supreme Economic Court with the writ of appeal in which arguments that the shipping schedule of products is constituted by the claimant without changes in execution of pre-shipment documentation are stated and without approval of the consignor, "Almalyk MMC" (further AGMK) shipment conditions thereby are imposed to gruzootpravitelyuotkryty joint-stock company that is violation of requirements of Art. 16 of the Law of the Republic of Uzbekistan "About natural monopolies" which prohibits to the claimant to impose conditions of access to goods of subjects of natural monopolies or to make other actions leading to discrimination of consumers of goods of subjects of natural monopolies or receipt of the income due to collection from consumers of the payment which is not considered in stated prices (rates). In case of decision by Trial Court defendant's cases that it is necessary to analyze all process of receipt of pre-shipment documentation were not considered. The court allows procedural violation and attraction to case in quality of the third party of AGMK according to which statement the decision was made by antimonopoly authority is not provided. In the claim the defendant makes demands about judgment cancellation.
Judicial board, having studied case papers, having discussed arguments of the writ of appeal, considers necessary the claim to satisfy partially, to cancel the judgment, having sent case for new trial in Trial Court on the following bases.
From case papers it is seen that on March 3, 2004 the commission of the State Committee of the Republic of Uzbekistan on demonopolization and development of the competition considers the application of AGMK for refusal by the claimant in review of conditions of planning of transportation of goods of plant. During verification of the statement of defense it is determined that AGMK are allowed monthly variations of the plan of shipment established by GAZhK in this connection the claimant monthly shows AGMK penalties for failure to carry out of each decade shipment in the first and second decades of month.
The Trial Court by consideration of this case does not pay attention that the decision and the instruction of antimonopoly authority is accepted for the benefit of AGMK and recognition invalid these acts of state body infringes on interests of this business entity. However, from case papers it is seen that AGMK in case is not attracted to participate.
According to item 5 of the p. Z of Art. 188 of HPK of the Republic of Uzbekistan violation or the wrong application of regulations of procedural law is the basis to judgment cancellation if the economic court made the decision on the rights and obligations of persons who are not recruited in case.
In case of new trial the court needs to provide participation in case of AGMK, to carefully study arguments of the parties and on set of collected proofs to make the legal decision on case.
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