of June 12, 2007
About recognition of the lease agreement and act of acceptance transfer by invalid
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 26.07.2007 it is refused to open production on review)
Case No. 3/571
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges:
the chairman - Muravyev O. V.
judges: Polyansky A. G., Frolova G. M.
having considered the writ of appeal of the Utility company "City Typography of Kiyevo-Svyatoshinsky District" in proceeding in open court
on the resolution of the Kiev Economic Court of Appeal of 13.03.2007.
in the matter of No. 3/571
economic court of the city of Kiev
in the claim of the Utility company "City Typography of Kiyevo-Svyatoshinsky District" to
1. Kiyevo-Svyatoshinsky district public administration of Kiev region
2. To limited liability company "Svyatoshin publishing house
about recognition of the lease agreement and act of acceptance transfer of 25.12.2003 invalid
with the assistance of representatives
- claimant: Podpalova M. G. (the power of attorney No. 52/5 of 11.06.2007)
- defendant 1: was not,
- defendant 2: was not,
The decision of Economic court of the city of Kiev of 26.12.2006 (judge Hilinskaya V. V.) left without changes by the resolution of the Kiev Economic Court of Appeal of 13.03.2007 (board of judges in structure: the chairman - the judge Andriyenk V. V., judges Maletich M. M., Students V. I.) satisfaction of the claim regarding recognition invalid to the lease agreement of utility property of 25.12.2003 it is refused completely. Regarding recognition invalid the act of acceptance transfer of 25.12.2003 proceeedings are stopped. Decided to return to the Utility company "City Typography of Kiyevo-Svyatoshinsky" from the Government budget of Ukraine 85 UAH of the state fee listed by the payment order No. 243 from
01.11.2006. Of 01.11.2006 to leave the payment order No. 243 in case papers of Economic court of the city of Kiev No. 3/571.
In the writ of appeal the claimant asks to cancel the specified judgments, to make the new decision on case with which to satisfy the claim completely, referring to violation of the previous instances of regulations of substantive and procedural law by economic courts, namely: the Art. of the Art. 48, 153 Civil code USSR, Art. 136 of the Economic Code of Ukraine, the Art. of the Art. 6, 37, 48 Laws of Ukraine "About property", the Art. of the Art. 7, 9, 10, 13 Laws of Ukraine "About lease of state-owned property", Art. 49 of the Law of Ukraine "About property", p.1 Art. 111-10 of the Economic Procedure Code of Ukraine.
The response on the writ of appeal did not arrive.
Defendants did not use the participation right of the representatives in judicial session granted by the law.
The Defendant's representative-2 declared the petition for adjournment of consideration of the writ of appeal, pleading illness of the representative.
Taking into account requirements of the Art. of the Art. 77, of 111-5, 111-7 HPK of Ukraine and that circumstance that absence in judicial session of participants of legal procedure does not interfere with reconsideration of the case in court of cassation instance the petition is rejected.
Due to exit of the judge Frolova G. M. from leave, case No. 3/571 is considered by board of judges in the permanent structure formed by the order of 25.08.2005 No. 02-20/13 of the Vice-chairman of the Supreme Economic Court of Ukraine of the Ossetian A.O. in structure: the chairman is Muravyev O. V., judges Polyansky A. G., Frolova G. M.
Having reviewed in cassation procedure judgments, board of judges of the Supreme Economic Court of Ukraine, in view of borders of reconsideration of the case in cassation instance, comes to conclusion that the writ of appeal is subject to satisfaction partially on the following bases.
According to Article 108 of the Economic Procedure Code of Ukraine the Supreme Economic Court of Ukraine reviews according to the writ of appeal (representation) of the decision of local economic court and the resolution of Economic Court of Appeal.
According to requirements of article 111-7 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.
According to the explanations stated in Items 1, of the 6th resolution of the Plenum of the Supreme Court of Ukraine of 29.12.1976 to No. 11 "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, 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.
Motivation part of the decision shall contain the circumstances established by court which matter for case, their legal evaluation, and also assessment of all proofs, calculations from which the court proceeded in case of satisfaction of monetary and other property claims. Recognizing one and rejecting other proofs, the court shall prove it.
Judgments do not meet these requirements.
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