of February 28, 2007 No. 29/154-06
About reclamation of property from others adverse possession and recognition of the property right
(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 as a part of board of judges:
The god V.S. - the chairman, Kostenko T. F., Korobenko G. P. having considered materials of cassation representation and the writ of appeal of the First deputy prosecutor of Kharkiv of "National Export-import Bank of Ukraine" Open joint stock company on behalf of Ukreksimbank branch of JSC on the resolution of the Kharkiv Economic Court of Appeal of 29.11.2006 in the matter of economic court of the Kharkiv region in the claim of the Invaspektr company of the Kharkiv department of All-Ukrainian public organization "Union of Organizations of Persons with Disabilities of Ukraine" of Society of disabled people of the Kiev district to Darth private enterprise 3-and persons.
1. "Mogilev — Podolsk Machine-Building Plant of S. M. Kirov" open joint stock company
2. "National Export-import Bank of Ukraine" open joint stock company on behalf of Ukreksimbank branch of JSC about reclamation of property from others adverse possession and according to the counter action of Darth private enterprise to the Invaspektr company the Kharkiv department of All-Ukrainian public organization "Union of Organizations of Persons with Disabilities of Ukraine" of Society of disabled people of the Kiev district about recognition of the property right
representatives took part in judicial session:
from the claimant: Chuprin S. V. - дов.от 26.02.07.
from the defendant: Chaykin I. B. - Dov. N7 of 31.01.07.
from the third parties:
1) Vendichanskaya O. A. - Dov. N29 of 28.12.06.
2) Goncharenko A. V. - Dov. N010-01/5675 of 11.10.06
Of 18.10.2006 the economic court of the Kharkiv region is refused by the decision primary claims partially. Software Darth" is withdrawn from ownership "and the basic set of the equipment of mill of P6-ABM-50, of production of JSC Mogilev-Podolskogo mashinostroitelnogo zavoda im. S. M. Kirova according to the N1 specification is transferred to Invaspektr company of the Kiev department of All-Ukrainian public organization of disabled people "Union of organizations of persons with disabilities of Ukraine".
Collect from "software Darth" for benefit of Invaspektr company of the Kiev department of All-Ukrainian public organization of disabled people "Union of organizations of persons with disabilities of Ukraine" 641969, of 54 UAH of losses. Satisfaction of the counter action it is refused completely.
Of 29.11.2006 of the Kharkiv Economic Court of Appeal the decision of 18.10.2006 the economic court of the Kharkiv region is left by the resolution without changes.
Judgments are motivated with the fact that according to Art. 387 of the Civil code of Ukraine the owner has the right to summon the property from the face which is illegal without the corresponding legal basis took control of it. According to Art. 1212 of the Civil code of Ukraine, person who acquired property without good legal basis shall return this property. Under such circumstances primary claim regarding withdrawal from ownership of the defendant of property is reasonable, is confirmed by the proofs provided to court and is subject to satisfaction, and shall be refused the counter action as the claimant did not prove availability of declaration of will of the defendant in all terms of the contract of N23-DI of 23.09.2004.
Without agreeing with judgments, appealed to the Supreme Economic Court of Ukraine with cassation representation the first deputy prosecutor of Kharkiv and with the writ of appeal of JSC National Export-import Bank of Ukraine on behalf of Ukreksimbank branch of JSC and ask them to cancel, referring to the fact that courts break regulations of substantive and procedural law, in particular, by the Art. of the Art. 387, of 398, 1212 Civil codes of Ukraine, the Art. of the Art. 32, 104 Economic Procedure Codes of Ukraine. Economic courts it is incomplete circumstances which matter for case are found out and requirements p.1 by Art. 41 of the Economic Procedure Code of Ukraine about obligation of purpose of judicial examination for explanation of questions which arise in case of permission of economic dispute are not fulfilled.
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 substantive and procedural law in case of acceptance of the disputed court resolution, finds necessary cassation representation and the writ of appeal to satisfy partially.
By economic court it is determined that the claimant and the defendant 23.09.2004 signed the agreement N23-DI under the terms of which the claimant sells, and the defendant buys basic set of the equipment of mill of P6-ABM-50, of production of JSC Mogilev-Podolskogo mashinostroitelnogo zavoda im. Kirova which structure is specified in the N1 specification to this agreement.
By Trial Court it is also determined that the claimant and the defendant provided to court copies of the agreement N23-DI of 23:09. 2004, which differ among themselves in essential conditions. However the court did not take them into account as proofs, for the reasons of absence of proof of the fact that it is convenient to consider copy of the agreement such which answers declaration of will.
Article 32 of the Economic Procedure Code of Ukraine provides that proofs on case are any actual data based on which the economic court in the procedure determined by the law establishes availability or lack of circumstances on which requirements and objections of the parties, and also other circumstances which matter for the correct permission of economic dispute are based. These data are established by written and physical evidences, the conclusions of judicial examinations.
According to Art. 41 of the Economic Procedure Code 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.
However the court did not appoint judicial examination for establishment of copy of the agreement which answers the actual declaration of will of the parties.
In case papers there are no proofs of contest by the parties of the fact of the conclusion of the agreement N23-DI of 23.09.2004 and in judicial session this fact was not determined.
According to Art. 43 of the Economic Procedure Code of Ukraine, the economic court estimates proofs on the internal beliefs which are based on comprehensive, complete and objective examination in legal procedure of all facts of the case in their set, being guided by the law. No proofs have predefined force for economic court.
The economic court does not provide legal treatment to the fact that
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
Database include more 50000 documents. You can find needed documents using search system. For effective work you can mix any on documents parameters: country, documents type, date range, teams or tags.
More about search system
If you cannot find the required document, or you do not know where to begin, go to Help section.
In this section, we’ve tried to describe in detail the features and capabilities of the system, as well as the most effective techniques for working with the database.
You also may open the section Frequently asked questions. This section provides answers to questions set by users.