of December 28, 2005 No. 12/547
About collection it is groundless the acquired property
(the resolution of Trial chamber on economic cases of the Supreme Court of Ukraine of 02.03.2006 it is refused initiation of production on review)
The Supreme Economic Court of Ukraine as a part of board of judges: The god V.S. - the chairman, Kostenko T. F., Korobenko G. P. having considered materials of the writ of appeal of JSC Zaporozhtransformator, Zaporizhia on the resolution of the Zaporizhia Economic Court of Appeal of 25.10.2005 in the matter of economic court of the Zaporizhia region in the claim of Slavyansky Incorporated bank, Zaporizhia to JSC Zaporozhtransformator, Zaporizhia with the assistance of the prosecutor of the Zaporizhia region about collection is groundless the acquired property on the amount of the 742nd 456, of 28 UAH with the participation of agents of the parties:
claimant: was not
defendant: Sokruta M. M. - Dov. N1/05 N of 02.09.2005.
prosecutor: was not
The resolution of economic court of the Zaporizhia region of 26.08.2005 (judge O. A. Protsenko) left without changes by the resolution of the Zaporizhia Economic Court of Appeal of 25.10.2005 (as a part of the chief judge Yatsenko O. M., judges: Miroshnichenko M. V., Yukhimenko O. V.) proceeedings are stopped based on Articles 41, 79 HPK Ukraine in connection with purpose of judicial examination.
Without agreeing with the resolution of the Zaporizhia Economic Court of Appeal of 25.10.2005 after JSC Zaporozhtransformator this to case appealed with the writ of appeal to the Supreme Economic Court of Ukraine in which asks it to abolish, and to send case for consideration in local economic court, motivating the claim with the fact that vessels incorrectly apply regulations of procedural law, namely the Art. 41, 43 HPK Ukraine, and it is incomplete case papers are researched.
Board of judges, in view of borders of reconsideration of the case in cassation instance, having analyzed based on the actual facts of the case application of regulations of procedural law in case of carrying out of the disputed court resolution, finds necessary to refuse satisfaction of the writ of appeal for such reasons.
The claimant and the prosecutor did not exercise procedural law on participation in judicial session of court of cassation instance.
According to the p. 2 of Art. 79 of HPK of Ukraine the economic court stops proceeedings in case of appointment of judicial examination as economic court.
Apparently from case papers, the basis for purpose of judicial examination on this case is need of establishment of the valid assessment of disputable property as the parties have disagreements in assessment of circumstances of dispute.
On content p.1 and the 2nd Art. 41 of HPK of Ukraine for explanation of questions which arise in case of permission of economic dispute and need special knowledge, the economic court appoints judicial examination. At the same time participants of legal procedure have the right to offer economic court questions which shall be explained by the court expert. The final circle of these questions is established by economic court in the resolution.
Offers from the defendant concerning circle of questions for conducting examination were not offered, and the court independently established circle of these questions.
Therefore, stopping production on this to case, the court legally left need of conducting judicial examination, without violating at the same time the rights of the parties provided by Articles 4, 4-3 HPK Ukraine.
Under this circumstance it is necessary to recognize that the local economic court had enough bases for application to the disputable relations of legal relationship of institute of stop of proceeedings as its application on contents of Art. 79 of HPK of Ukraine makes a reservation, in particular, appointment of judicial examination as economic court.
Being guided by the Art. of Art. 111-5, 111-7, 111-9, 111-11, 111-13 of the Economic Procedure Code of Ukraine, court
To refuse satisfaction of the writ of appeal.
To leave the resolution of the Zaporizhia Economic Court of Appeal of 25.10.2005 on case N12/547 without changes.
V. S. Bozhok
T. F. Kostenko
G. P. Korobenko
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