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RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of December 23, 2003 No. 10

About some questions connected with subsidiary responsibility of the local executive and administrative organs acting as guarantors or guarantors

Due to the questions arising in court practice connected with subsidiary responsibility of local executive and administrative organs and for the purpose of ensuring uniform approach to their permission the Plenum of Supreme Economic Court of the Republic of Belarus, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, No. 2, the Art. 32),

DECIDES:

1. Draw the attention of economic courts that legal status, competence and powers of local executive and administrative organs are regulated by Section 5 of the Constitution of the Republic of Belarus, Chapter 5 of the Civil code of the Republic of Belarus, the Law of the Republic of Belarus of February 20, 1991 "About local authority and self-government in the Republic of Belarus" (Vyarkho¸naga Savet's Vedamastsi of BSSR, 1991, No. 11, Art. 122; The National register of legal acts of the Republic of Belarus, 2000, No. 8, 2/137), the Law of the Republic of Belarus of May 5, 1998 "About administrative-territorial division and procedure for the solution of questions of the administrative-territorial device of the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1998, No. 19, the Art. 214), and also the decisions of local councils of deputies which are binding in the corresponding territory.

In particular, by article 3 of the Law of the Republic of Belarus of May 5, 1998 "About administrative-territorial division and procedure for the solution of questions of the administrative-territorial device of the Republic of Belarus" it is determined that administrative and territorial units of the Republic of Belarus are the territories in which space limits according to the procedure, stipulated by the legislation, local councils of deputies, executive and administrative organs are created and are effective.

Areas, areas, the Village Councils, and also the cities and settlements of city type in which local councils of deputies, executive and administrative organs are created belong to administrative and territorial units in the Republic of Belarus.

2. According to Article 124 of the Civil code of the Republic of Belarus (further - group of companies) administrative and territorial units participate in the relations regulated by the civil legislation, as equals with other participants of these relations - physical persons and legal entities.

According to Item 1 of Article 126 of group of companies administrative and territorial units answer for the obligations belonging to them on the property right property except property which can be only in utility property.

By part 1 of article 36 of the Law of the Republic of Belarus of February 20, 1991 "About local authority and self-government in the Republic of Belarus" it is determined that the utility property consists of treasury of administrative and territorial unit and the property assigned to utility legal entities. The treasury of the corresponding administrative and territorial unit is constituted by means of the local budget and other utility property which is not assigned to utility legal entities.

With respect thereto in case of the non-execution by the debtor provided with the guarantee or guarantee of the obligation (Article 343, of 349 groups of companies) the creditor has the right to declare the claim to the guarantor or the guarantor and if executive and administrative organs act as the guarantor or the guarantor.

3. At the same time courts should consider features of legal status of these subjects of the civil law.

The Item 5 of part 9 of article 9 of the Law of the Republic of Belarus of February 20, 1991 "About local authority and self-government in the Republic of Belarus" provides that the executive committee as executive and administrative organ disposes of utility property of administrative and territorial unit according to the procedure, established by Council of deputies.

The amount of the rights and obligations of regional councils of deputies, the Minsk city council of deputies, committees, managements, departments, the associations subordinated to regional executive committee and also municipal unitary enterprises, national associations, the companies and organizations which property is in regional utility property (utility city property of Minsk) is determined by management and the order of regional utility property (utility city property of Minsk) by the Regulations on procedure for management and the order regional utility property (utility city property of Minsk) approved by decisions of regional councils of deputies, the Minsk city council of deputies.

4. The legislation of the Republic of Belarus regulates questions of provision of guarantees for deputies by regional councils on loans (credits) issued by banks of the Republic of Belarus to the organizations.

So, article 11 of the Law of the Republic of Belarus of December 28, 2002 "About the budget of the Republic of Belarus for 2003" (The national register of legal acts of the Republic of Belarus, 2003, No. 3, 2/918) provides education and the direction of means regional and the Minsk city council of deputies of local trust budget fund of stabilization of economy of producers of agricultural products on return of the bank loans issued under guarantees of the Government or executive committees, commodity loans. The similar procedure is provided by the budget of the Republic of Belarus for 2004.

The resolution of Council of Ministers of the Republic of Belarus of March 13, 2001 No. 332 "About some questions of provision of guarantees by regional executive committees on loans (credits) issued by banks of the Republic of Belarus to the organizations of agro-industrial complex" (The national register of legal acts of the Republic of Belarus, 2001, No. 31, 5/5505) it is determined that guarantees can be issued by regional executive committees within the means provided in local budgets and trust budget funds. At the same time Item 3 of this resolution it is offered to regional executive committees to develop regulations on procedure for provision of guarantees by them on loans (credits) that found realization in decisions of regional executive committees. For example, the decision of the Vitebsk regional executive committee of August 7, 2003 No. 430 "About approval of the Instruction about procedure for provision of guarantees by the Vitebsk regional executive committee on loans (credits) issued by banks of the Republic of Belarus to the organizations of the Vitebsk region" (The national register of legal acts of the Republic of Belarus, 2003, 114, 9/2931) is provided No. procedure for provision of guarantees, and also implementation of decisions of regional executive committee on provision of guarantees. The Grodno, Mogilev and Minsk regional executive committees approved procedure for issue of guarantees.

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