of January 11, 2007 No. 30/427
About reclamation of property from others adverse possession
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 01.03.2007 it is refused to open production on review)
The Supreme Economic Court of Ukraine as a part of board of judges:
chairman, judge: Pershikov E. V.
judges: Savenko G. V., Hodakovskaya I. P. having considered the writ of appeal of Zvezda Agroindustrial Corporation Ltd on the resolution of 03.10.2006. The Kiev Economic Court of Appeal on case N30/427 of Economic court of Kiev on the claim of Zvezda Agroindustrial Corporation Ltd to Fund of state-owned property of Ukraine about reclamation of property from others adverse possession
With participation of representatives:
the claimant - Gudilik M. I., by proxy
the defendant - Kovalenko O. P., by proxy
The Zvezda Agroindustrial corporation private company appealed to economic court of Kiev with the claim to Fund of state-owned property of Ukraine for reclamation of property from others adverse possession.
The decision of economic court of Kiev of 05.07.2006 which is left without changes by the resolution of 03.10.2006. The Kiev Economic Court of Appeal satisfaction of the claim it is refused.
Zvezda Agroindustrial Corporation Ltd appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which asks to repeal the resolution of 03.10.2006. The Kiev Economic Court of Appeal and the Decision of economic court of Kiev of 05.07.2006 in the matter of N30/247, and to make the new decision.
According to Art. 111-7 of HPK of Ukraine, reviewing in cassation procedure judgments, cassation instance based on the established actual facts of the case checks application by court of the first or appellate instance of regulations of substantive and procedural law. The cassation instance has no right to establish or consider proved circumstances which were not established in the decision or the resolution of economic court or are rejected by it, to resolve issue of reliability of this or that proof, of benefit of one proofs over others, to collect new proofs or in addition to check proofs.
Having considered case papers and the writ of appeal, having analysed correctness of application by court of regulations of substantive and procedural law based on the established actual facts of the case, the board of judges considers that the writ of appeal is not subject to satisfaction, proceeding from the following.
As it is established by the previous degrees of jurisdiction, between Zvezda Agricultural firm and the Rivne combining "Rovnokokhozzdravnitsa" in 1992 the purchase and sale agreement which subject was purchase and sale of sanatorium complex of Zvezda agricultural firm (item 1.1 of the agreement) is signed.
According to item 2.1 of the agreement Zvezda Agricultural firm undertook to sell, and the Rivne combining "Rovnokolkhozzdravnitsa" undertook to purchase sanatorium complex together with the equipment installed in it and not established accessories, and also to pay the amount of cost of sanatorium provided by the agreement with equal parts during 1992.
According to Art. 35 of the Economic Procedure Code of Ukraine the facts determined by the decision of economic court (other body which solves economic disputes) during consideration of one case, are not given again in case of permission of other disputes in which the same parties participate.
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