of January 25, 2007 No. 20-5/109
About the termination of actions which violate the rights
(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)
The Supreme Economic Court of Ukraine as a part of board of judges:
chairman: Greyts K. V.,
judges: Bakulina S. V., L.I Oven fork. having considered in proceeding in open court materials of the writ of appeal of Skorb Private enterprise on the resolution of 16.11.2006 of the Sevastopol Economic Court of Appeal on case N20-5/109 of economic court of the city of Sevastopol on the claim of the State municipal company "Sevastopol Plant of Improvement" to
1. Sevastopol city council;
2. The Sevastopol city public administration about the termination of actions which violate the rights according to the counter action software "Grief" to the State municipal company "Sevastopol Plant of Improvement" about duty to sign the agreement
representatives took part in judicial session:
from the claimant: Stepanenko O. B. (the power of attorney of 05.07.2006) from
defendant: Shcherbich V. K. (the power of attorney of 23.06.2006); Krasnoshchok A. I. (the power of attorney N17 of 20.01.2007)
from the third parties: were not
Decision of Economic court of the city of Sevastopol (judge Evdokimov I. V.) of 12.10.2006, the resolution of the Sevastopol Economic Court of Appeal left without changes (the chief judge - Gontar V. I., judges - Goroshko N. P., Shchepanskaya O. A.) of 16.11.2006, on case N20-5/109 primary claim is satisfied completely; absence at software "Grief" of the rights to implementation of economic activity about provision of funeral services in the territory of the cemetery which is located in Sevastopol on 5-km Balaklavskoye Shosse is recognized; obliged software "Grief" to stop implementation of economic activity on provision of funeral services in the territory of the cemetery which is located in Sevastopol on 5-km Balaklavskoye Shosse; collect from the defendant for benefit of the claimant expenses on payment of the state fee in the amount 85, of 00 UAH and expenses on ITO of legal procedure in the amount 118, of 00 UAH; satisfaction of the counter action it is refused completely.
In the writ of appeal software "Grief" asks to cancel the court acts adopted on case, to submit the case on new trial to Trial Court, referring to violation of regulations of substantive and procedural law, namely: Art. 10 of the Law of Ukraine "About burial and funeral case", item 8 of the Standard provision "About Ritual Service in Ukraine", the Art. of the Art. 648, 649 Civil Code of Ukraine, the Art. of the Art. 43, 77, 101, 105 GPK of Ukraine.
In response on the writ of appeal the claimant completely denies the arguments stated in it.
The third parties did not use the granted procedural law on participation in court session of cassation instance.
Having heard explanations on the writ of appeal of defendant's representatives who supported the arguments stated in it, objections on the writ of appeal of the representative of the claimant, having checked completeness of establishment of the facts of the case and correctness of their legal evaluation in the resolution of Economic Court of Appeal, the board of judges of the Supreme Economic Court of Ukraine comes to conclusion that the writ of appeal is not subject to satisfaction for the following reasons.
By courts of the previous instances it is determined that on April 23, 2004 between the State municipal company "Sevastopol Plant of Improvement" and Skorb Private enterprise the agreement on investing activities of N27 was signed.
According to subitem 1.1 of the agreement, its subject is set of collateral practical actions of the State municipal company "Sevastopol Plant of Improvement" and Skorb Private enterprise for implementation of investing activities based on housekeeping for the purpose of increase in efficiency of use of municipal property and ensuring needs of the population of the city of Sevastopol for funeral services on improvement of the cemetery in general, and also to digging of graves, content and protection of the territory of the old cemetery on the 5th kilometer of Balaklavskoye Shosse of the city of Sevastopol on terms of the contract.
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