RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of December 21, 2006 No. 28/209-06

About change of terms of the contract

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 29.03.2007 it is refused to open production on review)

Board of judges of the Supreme Economic Court of Ukraine in structure: chairman: Pershikova E. V., judges: Savenko G. V., Hodakovskoy I. P., agro-industrial "Elita" considered the writ of appeal of the Dnipropetrovsk city council (further Council) on the resolution of the Dnipropetrovsk Economic Court of Appeal of 05.10.06 on case N28/209-06 of economic court of the Dnipropetrovsk region on the claim of limited liability company "(Further Society) to Council about change of terms of the contract In meeting representatives took part:

claimant: Bezrukov D. S. (on Dov./N of 21:08. 06);

defendant: were not.

Of 01.12.06 the writ of appeal of Council was accepted by determination in production, consideration of the case is appointed on 21.12.06.

The specified determination of court was directed to party litigants in accordance with the established procedure, documents which would confirm its non receipt by party litigants, in the Supreme Economic Court of Ukraine did not arrive, therefore all participants of legal procedure according to Art. 111-4 of the Economic Procedure Code of Ukraine are properly informed on time and the place of consideration of the writ of appeal.

On the date of consideration of the case in judicial session 21.12.06 any written applications and petitions from participants judicial to process in court did not arrive.

In judicial session 21.12.06 the representative of Council was not.

Considering that by determination about purpose of case to consideration of the parties it was warned that absence without valid excuse in judicial meeting does not involve transferring of consideration of the case for other terms, and from the complainant of messages on impossibility of participation in judicial session 21.12.06 in board of judges of the Supreme Economic Court of Ukraine did not arrive, case is considered according to available case papers with the assistance of the representative of Society, and the complete text of the resolution of the Supreme Economic Court of Ukraine goes to party litigants in the procedure established by the law.

Removals of structure of board of judges are not declared.

With the consent of the representative of Society, according to the p. 2 of Art. 85 and p.1 of Art. 111-5 of the Economic Procedure Code of Ukraine, in judicial session were only declared 21.12.06 introductory and resolutive speak rapidly resolutions of the Supreme Economic Court of Ukraine.

Of 10.07.06 of economic court of the Dnipropetrovsk region (judge Manko G. V.) claims of Society are satisfied by the decision completely.

Changes in item 2.1 of the lease agreement of the parcel of land are made of 20:12. 02, the prisoner between Society and Council, and he is stated in the following edition: "the parcel of land is transferred till 29.08.2012. After the termination of term of the agreement its action comes to an end".

In advantage Society to exact from Council 85, 00 UAH of the state fee and 118, of 00 UAH of expenses on information technical supply of legal procedure.

The resolution of 05.10.06 the Dnipropetrovsk Economic Court of Appeal (board of judges in structure: predsedatelstvuyushchegopavlovsky P.P., judges - Chus O. V., Logvinenko A.O.) the petition for appeal of Council is left without satisfaction, and the decision of 10.07.06 of economic court of the Dnipropetrovsk region - without changes.

Decisions of the previous degrees of jurisdiction are motivated with the fact that as the decision of 28.08.02 of economic court of the Dnipropetrovsk Council region leases of the parcel of land obliged to sign with Society long-term agreement, requirements of the Society about change of terms of the contract concluded on accomplishment of the specified decision only for 4 years 8 months are lawful.

Without agreeing with decisions of the previous degrees of jurisdiction, Council appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which it asks the decision of 10.07.06 of economic court of the Dnipropetrovsk region and the resolution of 05.10.06 of the Dnipropetrovsk Economic Court of Appeal to cancel and accept the new resolution to which to refuse satisfaction of claims of Society in full on case.

Council proves the requirements by the fact that in case of adoption of the appealed decisions by courts regulations of substantive and procedural law were broken, namely: item 1 of the Art. 12, the Art. of the Art. 116, 124 Land codes of Ukraine, the Art. 24, item 34 of the Art. 26, the Art. 34, item 2 of Art. 77 of the Law of Ukraine "About local self-government".

Besides the complainant considers that degrees of jurisdiction were is incomplete circumstances which matter for case are found out.

In particular the complainant pays attention that necessary condition of the conclusion and renewal of the lease agreement of the parcel of land which is in the state-owned or utility property is availability of the relevant decision of local government body.

On the date of substantive prosecution the written response on the writ of appeal from Society did not arrive.

In judicial session the representative of Society concerning arguments of the complainant objected, including their groundless, and the appealed decision and the resolution - legal and reasonable.

Having considered case papers, the writ of appeal, having heard explanations of the representative of Society, the judge-speaker on case, having analyzed correctness of application by courts of regulations of substantive and procedural law based on the established actual facts of the case, the board of judges of the Supreme Economic Court of Ukraine came to conclusion that the writ of appeal is not subject to satisfaction for the following reasons.

As it is established by the previous degrees of jurisdiction based on case papers and the economic court of the Dnipropetrovsk region on case N23/172 is not denied by the complainant in the writ of appeal, the decision of 28.08.02 (further Decisions from 28.08.02) Council owed sign with Society the agreement of long-term lease of the parcel of land by Ploshchad 0,15 of hectare, at the address: Dnipropetrovsk, Ulitsa Plekhanova. The specified Decision at the time of adoption of the appealed judgments in the procedure established by the law was not cancelled and is acting.

Based on the proofs provided by the parties on case by degrees of jurisdiction it is determined that in pursuance of the Decision from

28.08.02 between the parties the lease agreement of the parcel of land was signed of 20.12.02 (further the Agreement of 20:12. 02) under the terms of which the lessor (Council) transfers and the lessee (Society) accepts in lease on terms of the contract the parcel of land which is located at: Dnipropetrovsk, Kirovsky district, Ulitsa Plekhanova, for construction of the administrative house.

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