of April 26, 2005 No. 16
About some questions of application by economic courts of the legislation by hearing of cases on protection of goodwill
(as of March 4, 2011)
Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of ensuring the correct and uniform application by economic courts of the Republic of Belarus of the legislation on protection of goodwill, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to make the following explanations.
1. The goodwill in the sphere of business and other economic (economic) activity which protection in economic court is possible by means of presentation of the claim for confutation of the untrue data discrediting goodwill or by means of the address with the statement for recognition of the data discrediting goodwill untrue, is understood as assessment of the participant of the relations in the sphere of business and other economic (economic) activity by other participants of these relations, derogation (discredit) of which can negatively influence implementation by this participant of the specified activities.
2. Distribution of the untrue data discrediting goodwill in the sphere of business and other economic (economic) activity is understood as their message to the uncertain group of people, including by means of publication in printing mass media, in radio - TV and video programs, placements on the global computer Internet, demonstration on posters, stands, indicating panels and in other form. The message of the specified data is direct to person whom they concern, is not their distribution, except cases when person who reported these data did not take the measures excluding availability of these data to the uncertain group of people.
In case of distribution in mass media of data in the form of the value judgments or opinions belittling according to the legal entity, the organization, not being the legal entity, the individual entrepreneur or the citizen, their goodwill in the sphere of business and other economic (economic) activity, these persons can according to Item 3 of Article 153 of the Civil code of the Republic of Belarus (further - group of companies) to use the right to publication in the same mass media of the opposite point of view in the form of confutation of the spread information.
3. The data which are untrue, having reprehensible character (for example, data on violation of the current legislation, on bad faith are discrediting goodwill in the sphere of business and other economic (economic) activity when implementing business activity, about violation of ethics of business conduct).
Discrediting goodwill of the legal entity in the sphere of business and other economic (economic) activity can be the untrue information about his head, other workers in case of accomplishment of the labor functions by them and (or) ex-officio full powers if it negatively influences implementation by the legal entity of business and other economic (economic) activity.
Are not discrediting goodwill in the sphere of business and other economic (economic) activity of the data which contain the untrue approvals about the shortcomings of business activity which are available for the individual entrepreneur or the legal entity or the having character of value judgment or opinion which are not possible for checking regarding their compliance of reality.
4. In relation to Article 153 of Civil Code, Article 47 of the Economic Procedure Code of the Republic of Belarus (further - HPK) the legal entity, the organization, not being the legal entity, the individual entrepreneur or the citizen has the right to demand by court action confutations of the data discrediting their goodwill in the sphere of business and other economic (economic) activity without preliminary observance of pre-judicial procedure for the address with such requirement to person who spread this information including in case the claim for protection of goodwill is made to the legal entity to who functions of editorial office of mass media (daleeredaktion of mass media) are assigned.
The legal entity can require protection of the goodwill in the sphere of business and other economic (economic) activity and if the information discrediting it is spread concerning activities of the isolated structural division of this legal entity. Considering that the requirement about protection of goodwill is the requirement about protection of the non-property right, according to Article 209 of group of companies limitation period does not extend to this requirement.
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