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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of April 2, 2003 No. 9/145

About indemnification in connection with inadequate agreement performance

The party which suffered losses in connection with improper execution of terms of the contract by other party has the right to require their compensation.

Having considered the writ of appeal of JSC Oblteplokommunenergo on the resolution of January 16, 2003 of the Kiev Economic Court of Appeal on case N9/145 of economic court of the Chernihiv region on the claim of Perspekt Production Trade Enterprise LLC to JSC Oblteplokommunenergo about collection of 54330 UAH, the Supreme Economic Court of Ukraine established the following.

The decision of economic court of the Chernihiv region of March 2, 2002 from the defendant claims 54330 UAH of the damages connected with non-execution by the defendant of terms of the contract of N136 of October 1, 1997.

The Kiev Economic Court of Appeal the resolution of January 16, 2003 left decisions of economic court without changes.

In the writ of appeal the question of cancellation of the resolution of Appeal Court of January 16, 2003 and return of case to new trial to local court is raised. The applicant considers that judgments do not conform to requirements of the current legislation.

Having discussed arguments of the writ of appeal, having checked legal evaluation of the facts of the case and completeness of their establishment, having researched correctness of application of regulations of substantive and procedural law, the board of judges considers that the writ of appeal is not subject to satisfaction, considering the following.

The agreement N136 about operational and maintenance of boiler rooms was signed between the parties on October 1, 1997. According to Article 161 of group of companies of the Ukrainian SSR shall be fulfilled obligation properly and at the scheduled time.

The court determined that the defendant of condition of the specified agreement properly did not carry out.

According to Article 6 of group of companies of the Ukrainian SSR protection of the civil laws is performed, in particular, by collection from person who violated the rights, the caused losses which amount is determined by Article 203 of group of companies of the Ukrainian SSR.

The facts determined by the decision of economic court during consideration of one case are not proved again in case of the decision of other disputes in which the same parties (article 35 HPK of Ukraine) participate.

The claimant has the right to require in accordance with the established procedure compensation of the losses (Article 203 of group of companies of the Ukrainian SSR) caused to it. The obligation stops its accomplishment properly and on other bases determined by Chapter 19 of the Civil Code of the Ukrainian SSR.

The judicial board considers the resolution of appellate instance to relevant requirements of the legislation, and there are no bases for change or cancellation of judgments.

Being guided by articles 111-5, 111-7, 111-9 HPK of Ukraine, board

judges

DECIDED:

to leave the resolution of the Kiev Economic Court of Appeal of January 16, 2003 on case N9/145 without changes, and the writ of appeal without satisfaction.

 

Chairman

Chernoguz F.

Judges

Mikhaylyuk M.

Nevdashenko L.

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