RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 16, 2007

About duty to eliminate obstacles in use of the room

(Determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 19.07.2007 it is refused to open production on review)

Case No. 2/429

NAME OF UKRAINE

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 the writ of appeal of STP Is Old Private enterprise

on the resolution of the Kiev Economic Court of Appeal of 02.03.2007

in the matter of economic court of Kiev

in the claim of STP Is Old Private enterprise

to the State complex trade enterprise "Kreshchatik"

third parties:

1. Regional department of Fund of state-owned property of Ukraine;

2. Ministry of agrarian policy of Ukraine.

about duty to eliminate obstacles in use of the room

representatives took part in judicial session:

from the claimant: were not

from the defendant: were not

from 3rd persons:

1. Kostishena V. L. - Dov. N130 of 14.12.2006

2. Shevnikova A. M. - Dov. N31-4/77 of 24.02.2007

ESTABLISHED:

Of 28.11.2006 the economic court of Kiev is refused by the decision satisfaction of claims.

Of 02.03.2007 of the Kiev Economic Court of Appeal the decision of 28.11.2006 the economic court of Kiev is left by the resolution without changes.

Judgments are motivated with the fact that according to the p. 6 of Art. 762 of the Civil code of Ukraine the tenant is exempted from payment for all the time during which the property could not be used by it in accordance with the circumstances for which he is not responsible. For the admission and use "software of STP Is old" the leased room, the claimant shall address to the Ministry of agrarian policy of Ukraine, but to the defendant, however, the claimant takes any proper measure directed to establishment of possibility of use of the claimant by the leased room.

The defendant is not lease agreement party N 2962, and therefore is not subject of legal relationship on tenancy which is object of lease under the specified agreement.

Without agreeing with judgments, "software of STP Is old" appealed to the Supreme Economic Court of Ukraine with the writ of appeal and asks them to cancel, referring to the fact that the court breaks regulations of substantive and procedural law, in particular, by Art. 43 of the Economic code of Ukraine, Art. 4 of the Economic Procedure Code of Ukraine, Art. 762 of the Civil code of Ukraine.

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 to refuse satisfaction of the writ of appeal.

By economic court it is determined that Regional department of fund of state-owned property of Ukraine for Kiev (lessor) and software of STP Is old" (lessee) signed the lease agreement of real estate of 30.03.2006 under N2962.

According to terms of the contract the lessor transferred, and the lessee accepted in urgent paid use the state-owned real estate, with a total area of 1 700 sq.m, at the address: Kiev, Ulitsa Kreshchatik, 24 (the technical floor of the building) which is on balance of the State complex trade enterprise "Kreshchatik".

The specified leased room is transferred by Regional department FGIU across Kiev to the claimant to lease under the act of acceptance - the conveyances of real property to the address: Kiev, Ulitsa Kreshchatik, 24 of 30.03.2006.

According to the resolution of the Cabinet of Ministers of Ukraine of N615 of 10.08.1993 "About measures for enhancement of protection of objects state and other patterns of ownership" the house in which there is room leased by the claimant is included into the list of objects which are subject to obligatory protection of Public service of protection by divisions under the Ministry of Internal Affairs under agreements, considering that in it the Ministry of agrarian policy of Ukraine is placed.

Therefore for use of the claimant of the leased room the last needed to get permission of the Ministry of agrarian policy of Ukraine for the admission Public service of protection under the Ministry of Internal Affairs of Ukraine to leased rooms, protection of the house N24 on Ulitsa Kreshchatik in Kiev, including establishment of access control, it is performed by Public service of protection.

By economic court it is also determined that the defendant has no right to provide permissions for passing to the territory of the house in which the Ministry of agrarian policy of Ukraine is placed and which is protected by Public service of protection under the Ministry of Internal Affairs of Ukraine.

As protection of the house N24 on Ulitsa Kreshchatik in Kiev, including establishment of access control, is performed by Public service of protection in connection with placement in this house of the Ministry of agrarian policy therefore behind obtaining corresponding to permission the claimant shall address to the specified Ministry.

Thus by the claimant according to Art. 33 of the Economic Procedure Code of Ukraine it is not proved that the defendant interfered with the claimant in use of leased rooms.

Besides the representative Regional department FGI of Ukraine across Kiev provides the copy of the agreement on agreement cancelation of lease of N2962 from 30.03.2006, according to which force of the agreement N2962 is ahead of schedule stopped by mutual consent of the parties and the agreement is considered broken off from 19.12.2006.

According to Art. 174 of the Economic code of Ukraine economic obligations can arise, in particular under the economic agreement and other agreements provided by the law and also on the agreements which are not provided by the law, but such which do not contradict it. Article 11 of the Civil code of Ukraine provides that the bases of emergence of the civil laws and obligations, in particular, are agreements and other documents of title.

Considering that the lease agreement N2962 stopped the action therefore the right of the claimant of use of the room which is located at: Kiev, Ulitsa Kreshchatik, 24, also stops.

By part 6 of Art. 762 of the Civil code of Ukraine it is determined that the tenant is exempted from payment for all the time during which the property could not be used by it on circumstances for which he is not responsible.

Therefore the determining condition of release from the rent is availability of circumstances for which the lessee is not responsible, however, as it is established by economic court, because of divergence of the lessee the last had no passing opportunity on the territory of the house N 24 on Ulitsa Kreshchatik in Kiev.

The defendant is not lease agreement party N 2962, and therefore is not subject of legal relationship on tenancy which is object of lease under the specified agreement.

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