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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of April 5, 2007

About money recovery

(Determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 07.06.2007 it is refused to open production on review)

Case No. 10/203

NAME OF UKRAINE

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

the chairman - Ostapenko M. I.

judges: Goncharuka P. A., Harchenko V. M.

having considered the writ of appeal of Ukrtransgaz recreation Center of the National Joint Stock Company Naftogaz of Ukraine on behalf of Gas trunkline operation center of Prikarpattransgaz

on the resolution of the Lviv Economic Court of Appeal of 11.01.2007

on case on the claim of Ukrtransgaz recreation Center of the National Joint Stock Company Naftogaz of Ukraine on behalf of Gas trunkline operation center of Prikarpattransgaz

to joint stock company on gas supply and gasification of Zakarpatgaz

third party Regional utility company "Zakarpatteplokommunenergo"

about money recovery

ESTABLISHED:

In August, 2006, Ukrtransgaz recreation Center the National Joint Stock Company Naftogaz of Ukraine on behalf of Gas trunkline operation center of Prikarpattransgaz appealed to economic court with the recovery suit, taking into account amendments of claims, from joint stock company on gas supply and gasification of Zakarpatgaz of the 202nd 890, 77 UAH as are groundless the transportation services of natural gas received by it trunk gas pipelines in October, 2001 - December, 2003.

The claimant specified that based on item 3.1 of transportation agreements of natural N180-ZAK gas of 01.01.2001, N58-ZAK of 02.01.2002 and N4 of 02.01.2003 concluded by Gas trunkline operation center of Prikarpattransgaz with the Regional utility company "Zakarpatteplokommunenergo" it performed transportation of natural gas on trunk gas pipelines to gas distribution station, in the amounts defined by agreements, for needs of the Regional utility company "Zakarpatteplokommunenergo" that is confirmed by the summary sheets of consumption of natural gas by industrial enterprises and state-financed organizations signed by the claimant and the defendant. However for the transported natural gas which accounting of amounts was performed by joint stock company on gas supply and gasification of Zakarpatgaz the Regional utility company "Zakarpatteplokommunenergo" was calculated partially and the debt of the last to the claimant constitutes the 202nd 890, 77 UAH, and as, the defendant transferred to the Regional utility company "Zakarpatteplokommunenergo" smaller amount of natural gas, than was transported by the claimant, asked to exact from the defendant of the 202nd 890, 77 UAH based on Art. 1212 of Civil Code of Ukraine.

By the decision of economic court of the Transcarpathian region of 18.10.2006 satisfaction of the claim it is refused.

By results of reconsideration of the case in appeal procedure appealed by the resolution Lviv appeal economic to court of 11.01.2007 the petition for appeal of the claimant it is left without satisfaction, and the decision of economic court of the first instance - without changes.

By determination of the Supreme Economic Court of Ukraine from 19.03.2007 cassation proceeedings according to the writ of appeal of the claimant in which he refers to illegality of refusal in satisfaction of its claim, the wrong application regulation of the substantive right are opened and ask the decisions made on case by the previous degrees of jurisdiction to cancel, having made the new decision on satisfaction of its claim.

Having heard the judge-speaker, explanations of agents of the parties, in particular, and after the break announced in judicial session till 05.04.2007, having checked case papers and having discussed the arguments stated in the writ of appeal, the judicial board considers that decisions of economic court which are made in the matter of the first instance and the resolution of Economic Court of Appeal cannot be left without changes and are subject to cancellation with the direction of case papers into new judicial review, proceeding from the following.

As it is specified in item 1 of the Resolution of the Plenum of the Supreme Court of Ukraine from "About the judgment" of 29.12.1976 with subsequent changes, 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, and in case of their absence - based on the law which governs the similar relations, or proceeding from general bases and contents of the legislation of Ukraine.

The decision in which circumstances which matter for this case are fully 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.

However judgments which are accepted on case it is impossible to recognize such which meet the requirements stated above.

Refusing satisfaction of the claim, the economic court of the first instance and Economic Court of Appeal proceeded from lack of legal basis for assignment on the defendant of responsibility for the transportation services of natural gas provided by the claimant and not paid by the consumer according to requirements of Art. 1212 of Civil Code of Ukraine as, the defendant has no debt obligations before the claimant.

It is impossible to recognize the specified legal conclusions correct, first of all considering legal basis of the declared claim.

According to 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. Person shall return property and when the basis on which it was acquired disappeared afterwards.

This regulation are applied irrespective of whether finding or preserving property is groundless was result of behavior of the receiver of property, the victim, other persons or the investigation of event and therefore the reference of economic court of the first instance and Economic Court of Appeal to lack of contractual commitments on gas transportation under controversial agreements it is direct with the defendant in case as on the refusal basis in the claim declared according to Art. 1212 of Civil Code of Ukraine, had no legal value.

At the same time judgments did not confute the claimant's arguments that amounts of natural gas, protransportovany it during October, 2001 - December, 2002 on the terms of the agreements N180-ZAK of 01.01.2001, N58-ZAK of 02.01.2002 and N4 of 02.01.2003 for the Regional utility company "Zakarpatteplokommunenergo" and are accepted by the defendant on differentiation border in the gas distribution pipelines belonging to it, are transferred to the consumer not in full.

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