of June 12, 2007
About money recovery
(Determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 02.08.2007 it is refused to open production on review)
Case No. 05-5-8/1062
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges:
the chief judge - Muravyev O. V.
judges: Polyansky A. G., Frolova G. M.
having considered cassation representation of the Military prosecutor of the Vinnytsia garrison
on the resolution of 21.03.2007. Kiev Economic Court of Appeal
on case N05-5-8/1062 of economic court of Kiev
in the claim of the Military prosecutor of the Vinnytsia garrison for the benefit of the state on behalf of Military unit of A0215 (command of Air Forces of the Armed Forces of Ukraine)
to Affiliated enterprise of state-owned company on export and import of products and services of military and special purpose Ukrspetseksport State-owned self-supporting foreign trade and Ukrinmash investment firm about collection of the 50th 804, 38 UAH.
With the participation of agents of the parties:
the claimant - Spolitak A. M. Dov. N350/1/204ps of 27.02.2007.
the defendant - Bozhkov T. I. ate up. of 06.02.2007 N27/11-1309
prosecutor's offices - Kushnirenko Yu. V. certificates of N611
Determination of Economic court of the city of Kiev of 30.01.2007 (judge Katrich V. S.) returns the action for declaration of the Military prosecutor of the Vinnytsia garrison for the benefit of the state on behalf of Military unit of A0215 (command of Air Forces of the Armed Forces of Ukraine) without consideration based on item 1 of the Art. 63 GPK of Ukraine.
The resolution of the Kiev Economic Court of Appeal of 21.03.2007 (the judge: Grigorovich O. M., Goltsova L. A., V. I. Wildfire) determination of Economic court of the city of Kiev of 30.01.2007 is left without changes.
Without agreeing with determination of Economic court of Kiev of 30.01.2007 and the resolution of the Kiev Economic Court of Appeal of 21.03.2007, the Military prosecutor of the Vinnytsia garrison appealed to the Supreme Economic Court of Ukraine with cassation representation in which it asks them to cancel, and to submit case to Economic court of Kiev, motivating the claim with violation and the wrong application of regulations of procedural law by economic courts.
The response from the defendant did not arrive.
Due to exit of the judge Muravyev O. V. from leave, case N05-5-8/1062 is considered by board of judges in the permanent structure formed by the order of 25.08.2005 N02-20/13 of the Vice-chairman of the Supreme Economic Court of Ukraine of the Ossetian A.I. in structure: the chairman is Muravyev O. V., judges Polyansky A. G., Frolova G. M.
Having considered case papers, having estimated arguments of cassation representation, having checked correctness of application by courts of regulations of substantive and procedural law, the board of judges of the Supreme Economic Court of Ukraine came to conclusion that cassation representation is subject to satisfaction, proceeding from the following.
Taking out determination about leaving of the claim without consideration according to item 1 of the Art. 63 GPK of Ukraine and leaving the specified determination without changes, courts recognized that the Military prosecutor of the Vinnytsia garrison addressed with the claim not for the benefit of the state whereas claims are declared to the defendant collection of penalty fee and penalties for benefit of Military unit And 0215, but not for benefit of the state.
However courts did not consider that according to requirements of the Art. 2 GPK of Ukraine economic court open cases on actions for declaration of prosecutors and their deputies who appeal to economic court for the benefit of the state. The prosecutor who appeals to economic court for the benefit of the state in the action for declaration independently determines in what violation of interests of the state consists and proves need of their protection, and also specifies the body authorized by the state to perform the corresponding functions in the disputable relations.
According to the solution of the Constitutional Court of Ukraine on case on representation of the Supreme Arbitration Court of Ukraine and the Prosecutor General's Office of Ukraine on official interpretation of provisions of the Art. 2 GPK of Ukraine of 08.04.1999 N3-rp/99 is required to understand public authority or local government body to which the law confers powers of executive body as the concept "the body authorized by the state to perform the corresponding functions in the disputable relations".
According to the Presidential decree of Ukraine of 15.12.1999 to N1752/99 "About System of the Central Executive Bodies" and the Law of Ukraine "About sources of financing of public authorities" the Cabinet of Ministers of Ukraine, ministry, committees, the agencies, services, administrations, departments, the commissions, managements, chambers, funds, inspectorates, bureau and other central executive bodies and local public administrations treat system of executive bodies.
According to the Presidential decree of Ukraine "About approval of regulations on the Ministry of Defence of Ukraine and the General Staff of the Armed Forces of Ukraine" of August 21, 1997 N888/97 the Ministry of Defence of Ukraine (the Ministry of Defence of Ukraine) are the central executive body and military management under which supervision the Armed Forces of Ukraine are.
According to the Law of Ukraine "About the Armed Forces of Ukraine" of December 6, 1991 organizationally the Armed Forces of Ukraine consist of bodies of military management, associations, connections, military units, military educational institutions, organizations and the organizations.
Under such circumstances the judgments made on case are subject to cancellation, and case - to the direction for consideration in economic court of the first instance in essence.
According to the Art. of the Art. 85, 111-5 Economic Procedure Codes of Ukraine in judicial session with the consent of agents of the parties and prosecutor's office it is announced introductory and resolutive speak rapidly resolutions.
Being guided by the Art. of Art. 111-5, 111-7, 111-9, 111-10, 111-11 of HPK of Ukraine, the court DECIDED:
To satisfy cassation representation of the Military prosecutor of the Vinnytsia garrison.
And the resolution of the Kiev Economic Court of Appeal of 21.03.2007 to cancel determination of Economic court of the city of Kiev of 30.01.2007.
Send case for consideration on the merits in Economic court of the city of Kiev.
A. G. Polyansky
G. M. Frolova
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