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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of February 7, 2007 No. 31/215-06

About collection it is groundless the received means

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 19.04.2007 it is refused in to open production on review)

The Supreme Economic Court of Ukraine as a part of board of judges:

Nevdashenko L. P. - the chairman, Mikhaylyuka M. V., Dunayevskoy N. G. having considered in proceeding in open court in Kiev the writ of appeal of Open joint stock company "the Bolshevik Plant, Dnipropetrovsk, on the resolution of the Dnipropetrovsk Economic Court of Appeal of November 8, 2006 on case N31/215-06 of Economic court of the Dnipropetrovsk region on the claim of Open joint stock company "the Bolshevik Plant, Dnipropetrovsk, to Research and production private enterprise "Architectural Workshop of Alexey Kozolup", Dnipropetrovsk, about collection it is groundless the received means,

with the participation of agents of the parties:

claimant: - Wide S.V. (Dov. of 25.05.2006);

defendant:

- Grudnisty A. V. (Dov. of 10.01.2007);

- Polikovskaya V. G. (director),

ESTABLISHED:

In June, 2006 the claimant - Open joint stock company "the Bolshevik Plant made in economic court the claim to the defendant to Research and production private enterprise "Architectural Workshop of Alexey Kozolup" about collection is groundless the received means.

Specified that on May 20, 2004 the payment order N247 he, as subscription under the agreement N63-04 FEAST, listed to the defendant money in the amount of 54 047 UAH 20 kopeks.

Referring to the fact that the agreement to which it is made a reference in case of money transfer to the defendant not was it is concluded between the parties because of default of agreement on all its essential conditions and on refusal of the defendant to return it is groundless the acquired means, the claimant asked to meet its requirements, to collect in its advantage from the defendant taking into account annual interest rates and inflation charges of 57 312 UAH 07 kopeks.

The decision of Economic court of the Dnipropetrovsk region of September 13, 2006 (the judge Moroz V. F.) satisfaction of the claim it is refused.

The decision is motivated by references to obtaining by the defendant of the means received from the claimant in the amount of 54 047 UAH 20 kopeks on accomplishment of conditions of the contract to produce scientific and technical documentation signed between them and lack of the bases to application of consequence in law which are provided by Art. 1212 of Civil Code of Ukraine.

The resolution of the Dnipropetrovsk Economic Court of Appeal of November 8, 2006 (board of judges in structure: V.G.predsedatelstvuyushchego, Lisenko O. M. head, L.V. Chokhi) the decision is left without changes.

In the writ of appeal the claimant asks to cancel judgments and the resolution on this case for the reasons of discrepancy to requirements of regulations of the material and procedural legislation and to make the new decision on satisfaction of its claims in full.

Having heard the speaker, agents of the parties, having checked correctness of application of regulations of substantive and procedural law, the judicial board of the Supreme Economic Court of Ukraine came to conclusion that the writ of appeal is not subject to satisfaction on the following bases.

According to the explanations of the Plenum of the Supreme Court of Ukraine stated in item 1 of the Resolution of 29.12.1976 to N11 "About the Judgment", the decision is legal when court, having fulfilled all requirements of the procedural legislation and having comprehensively checked circumstances, solved case according to regulations of the substantive right which are subject to application to these legal relationship.

The decision in which circumstances which matter for this case are completely displayed is recognized reasonable, the conclusions of court about the established circumstances and consequence in law are exhaustive, answer reality and are confirmed by the mathematical evidences researched in judicial session.

The resolution of Appeal Court and the decision of local economic court meet the specified requirements as are based on comprehensive, complete and objective examination in legal procedure of all facts of the case in their set.

As it is established by courts of the previous instances, according to terms of the contract of N63-04 FEAST of the May 20, 2004 concluded between the parties, the claimant of JSC Bolshevik Plant, having charged to the defendant to Research and production private enterprise "Architectural Workshop of Alexey Kozolup" production of scientific and technical products: "Reconstruction of the office building with extension of restaurant" which is located under N40 on the prospectus of Kirov in Dnipropetrovsk. The cost of works on the agreement in the amount of 135 118 UAH is determined by the parties in the approved protocol.

According to item 1.3 of the Agreement the term of performance of works is determined by the schedule which is integral part of the Agreement.

Refusing satisfaction of requirements of the claimant, the local economic court fully and comprehensively researched all essential circumstances of this case, correctly established, and recognized that money in the amount of 54 047 UAH 20 kopeks was listed by the claimant to the defendant in pursuance of conditions of the agreement N63-04 FEAST signed between them of May 20, 2004 on production of scientific and technical documentation therefore the bases to application of consequence in law which are provided by Art. 1212 of Civil Code of Ukraine are absent.

These conclusions of court meet the requirements of the law established by court to circumstances and are based on case papers.

So according to provisions of Art. 1212 of Civil Code of Ukraine person who acquired property or preserved it at itself at the expense of other person (victim) without good legal basis (the acquired property is groundless), shall return to the victim this property.

According to Art. 638 of Civil Code of Ukraine the agreement is prisoner if the parties in due form reached consent according to all essential terms of the contract.

Essential terms of the contract are conditions about the subject of the agreement, conditions which are determined by the law as essential, or all those conditions concerning which according to the statement at least of one of the parties consent shall be reached are necessary for agreements of this type, and also.

By Trial Court it is determined that the parties in case of the conclusion of the agreement reached consent according to all essential terms of the contract and satisfied these conditions.

Thus the conclusion of local economic court about groundlessness of statements of the claimant about availability of the bases to consider the agreement N63-04 FEAST of May 20, 2004 unconcluded is reasonable and answers case papers.

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