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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of February 20, 2007 No. 19/189

About collection of the insurance payments which are excessively transferred into the personal account

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 26.04.2007 it is refused to open production on review)

The Supreme Economic Court of Ukraine in structure:

the judge Selivanenko V. P. is the judge's chairman Benedisyuk I. M. and Lviv B. Yu. considered the writ of appeal of department of executive directorate of Social Insurance Fund from labor accidents and occupational diseases of Ukraine in Krasnoarmeysk of Donetsk region, Krasnoarmeysk of Donetsk region (further - department of executive directorate of Fund) on the decision of economic court of Donetsk region of 19.09.2006 and the resolution of the Donetsk Economic Court of Appeal of 30.11.2006 on case N19/189 on the claim of department of executive directorate of Fund to "Government Savings Bank of Ukraine" open joint stock company, Kiev (further - JSC Gossberbank of Ukraine), on behalf of branch of Krasnoarmiysky department N2863 JSC Gossberbank of Ukraine, Krasnoarmeysk of Donetsk region about collection excessively transferred into the personal account of Savkov E. M. after his death from 06.02.2002 till 01.04.2006 the amounts of insurance payments in the amount of the 18th 449, 06 UAH.

Judicial session is held with the participation of agents of the parties:

the claimant - not яв.,

the defendant - Zhigadlo N. V.

By results of consideration of the writ of appeal Supreme Economic Court of Ukraine

ESTABLISHED:

The decision of economic court of Donetsk region of 19.09.2006 (judge Duchal N. M.) left without changes by the resolution of the Donetsk Economic Court of Appeal of 30.11.2006 (board of judges in structure: R.V.'s wolves - the chairman, judges Kalangtai M. V. and Starovoytova G. Ya.), satisfaction of the claim it is refused. In acceptance specified decisions and resolutions the previous degrees of jurisdiction recognized, in particular, that the defendant in case is not the owner of disputable means.

In the writ of appeal in the Supreme Economic Court of Ukraine department of executive directorate Fonda asks the appealed decision and the resolution of the previous degrees of jurisdiction on this case to cancel and make the new decision on duty of Red Army department N2863 JSC Gossberbank of Ukraine to return to the called department excessively transferred amounts of insurance payments. The claim is motivated with the fact that economic courts in consideration of the case: instructions of Item 3 parts one of Article 1219 of the Civil code of Ukraine (further - the Civil Code of Ukraine), Item 13 of the Payment procedure of pensions and the monetary assistance with the consent of pensioners and receivers of the help through their current accounts in banks approved by the resolution of the Cabinet of Ministers of Ukraine of 30.08.1999 of N 1596, of Article 6 of Bases of the legislation of Ukraine on obligatory national social insurance, preambles of the Law of Ukraine "About obligatory national social insurance from labor accident and occupational disease which entailed disability are not considered"; the Instruction about clearing settlements in Ukraine in national currency approved by the resolution of Board of the National Bank of Ukraine of 21.01.2004 of N22 is incorrectly applied.

In response on the writ of appeal of JSC Gossberbank of Ukraine, referring to instructions of Civil Code of Ukraine, considers that it is necessary to refuse grievance settlement, and also asks to specify in case of grievance settlement in the resolution what funds and court costs which are excessively transferred by department of executive directorate of Fund should be collected from the personal account of Savkov E. M.

The parties according to Article 111-4 of the Economic Procedure Code of Ukraine (further - GPK of Ukraine) are properly informed on time and the place of consideration of the writ of appeal.

Having checked completeness of establishment of the facts of the case by the previous degrees of jurisdiction and correctness of application of regulations of substantive and procedural law by them, the Supreme Economic Court of Ukraine came to conclusion about need of partial satisfaction of the writ of appeal, considering the following.

By degrees of jurisdiction on case it is determined that:

- the department of executive directorate Fonda (client) and JSC Gossberbank of Ukraine on behalf of its Krasnoarmiysky department N2863 (bank) signs the agreement/N of 01.01.2002 about transfer into personal accounts and payment of insurance payments insured (further - the Agreement);

- according to the Agreement:

the client charges, and the bank shall perform transfer on the current (supplementary) accounts opened in bank and payment of insurance payments to insured clients (citizens) on paid basis through bank (Item 1. 1);

the amount credited into the account on contribution cannot be returned by organization of bank to the company which listed it, without written consent of the investor (Item 2.2. 3);

- according to the resolution on continuation of earlier appointed insurance payment of 25.10.2001 N2017 on the personal account N12981 in branch of Red Army department N 2863 JSC Gossberbank of Ukraine opened addressed to Savkov E. M., from 06.02.2002 till 01.04.2006 the department of executive directorate of Fund lists insurance payments for Savkov E. M. on the amount of the 18th 449, 06 UAH;

- 15.05.2006 in department of executive directorate of Fund the letter of department of civil registration of Krasnoarmeysk in which it is reported about Savkov E. M. death arrived. 05.02.2002;

- the department of executive directorate of Fund addressed to branch of Red Army department N2863 JSC Gossberbank of Ukraine with the requirement about return of the specified amount in connection with the death of the victim, but the called bank reported that to return the means transferred into the personal account of Savkov E. M., it is possible only from written consent of the investor based on Item 6.37 of the Procedure for opening, maintaining and closing of accounts of physical persons in national currency organizations of JSC Sberbank approved by the resolution of board of JSC Sberbank of 16.02.2004 of N17-2;

- The agreement does not provide obligations of bank to return means in case of the death of the investor (account holder); the bank is not receiver of disputable funds which were transferred for Savkov E. M.

By article 11 of the Law of Ukraine "About property" it is determined that persons of law of individual property are, in particular, citizens of Ukraine.

According to Article 317 of Civil Code of Ukraine the owner possesses rights of possession, uses and orders of the property.

According to parts one and the second Article 321 of Civil Code of Ukraine the property right is indestructible, nobody can be illegally deprived of this right or is limited in its implementation; person can be deprived of the property right or is limited in its implementation only in cases and according to the procedure, established by the law.

According to Item 11 parts one of article 346 of the called Code the property right stops in case of, in particular, death of the owner.

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