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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of June 14, 2007

About removal of obstacles in use of non-residential premises

(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. 13/639-06

NAME OF UKRAINE

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

the chairman - V. I Derepy.

judges: Greek B.M., Stratiyenko L. V.

with the assistance of plenipotentiaries:

the claimant - Tanchik O. M.

the defendant - Karpenko G. V.

having considered the writ of appeal of JSC Sumy Machine-building Scientific and Production Association of Frunze in proceeding in open court

on the resolution of the Kharkiv Economic Court of Appeal of April 5, 2007

on case on the claim of JSC Sumy Machine-building Scientific and Production Association of Frunze

to the Regional utility institution - Sumy the regional consulting and diagnostic center

about removal of obstacles in use of non-residential premises

ESTABLISHED:

In October, 2006 the claimant appealed to economic court of the Sumy region with the claim to the defendant for removal of obstacles in use of non-residential premises, referring to the fact that it is the owner of the built in-attached non-residential premises of the diagnostic center total area of 704,9 of sq.m which are at the address: Sumy, Ulitsa Supruna, 3/1, and the defendant it is groundless occupies disputed rooms, creates obstacles in implementation of right to use and the order by the rooms by him.

The decision of economic court of the Sumy region of December 4, 2006 (the judge Likhovid B. I.) the claim is satisfied completely. Obliged the Regional utility institution - Sumy the regional consulting and diagnostic center to exempt the built in-attached non-residential premises of the diagnostic center total area of 704,9 of sq.m, at the address: Sumy, Ulitsa Supruna, 3/1. Collect from the Regional utility institution - Sumy the regional consulting and diagnostic center for benefit of JSC Sumy Machine-building Scientific and Production Association of Frunze 85, of 00 UAH of expenses on the national duty and 118, of 00 UAH of expenses on information technical supply of legal procedure.

The resolution of the Kharkiv Economic Court of Appeal of April 5, 2007 (the chief judge Slyusareva L. V., the judge Bondarenko V. P., Ivakin V. O.) the decision of local court is cancelled completely. Proceeedings are stopped.

Without agreeing with the resolution of Appeal Court, JSC Sumy Machine-building Scientific and Production Association of Frunze asks it to cancel, referring to the wrong application of regulations of substantive and procedural law by court, and the decision of local court to uphold.

In response on the writ of appeal the defendant asks to refuse its satisfaction because of groundlessness of requirements.

Having heard explanations of agents of the parties, having discussed arguments of the writ of appeal, having studied case papers, the court considers that the writ of appeal is subject to satisfaction for the following reasons.

According to item 2 p.1 of the Art. 80 GPK of Ukraine Economic Court of Appeal stop proceeedings if there is decision of economic court or other body which in limits of the competence solved economic dispute between the same parties, in the same subject and of the same reasons.

Accepting the resolution on cancellation of the decision of local economic court by which claims of the claimant were satisfied, and stopping proceeedings the Economic Court of Appeal recognized that the claimant for the second time addressed with the claim besides to the most otvetchikuoblastny utility institution - Sumy the regional consulting and diagnostic center about the same subject and on those bases.

However it is impossible to agree with the specified conclusions of appellate instance, considering the following.

As it was specified earlier, stopping proceeedings, the Economic Court of Appeal proved the conclusions by the fact that claims on this case are already solved by the decision of economic court of the Sumy region of May 4, 2006 in the matter of N2/57-06, which took legal effect. But at the same time by Economic Court of Appeal it was not considered that such termination is possible with identity of all three elements, namely if the parties, subject and the bases of claims match. Change at least testifies one of them to lack of identity of claims and does not interfere with interested persons to take a legal action with the claim.

The Appeal Court did not take into account that in the specified claims different objects and do not match the iskovobstoyatelstvo bases by which the claimant proved claims. The decision of economic court of the Sumy region of May 4, 2006 in the matter of N2/57-06, which took legal effect JSC Sumy Machine-building Scientific and Production Association of Frunze it is recognized as the owner of the built in-attached rooms, and regarding claims about duty of the defendant it was refused to exempt the room occupied by him court. On this case JSC Sumy Machine-building Scientific and Production Association of Frunze asks in the action for declaration to eliminate obstacles in use of non-residential premises which belong to it on the property right. As appears from reasons for claims, the claimant refers to the fact that the defendant refused signing with it of the lease agreement and without any bases, legal on that, and the relevant documents occupies these rooms.

Under such circumstances it is impossible to recognize the resolution of Economic Court of Appeal legal and reasonable, i.e. it which answers regulations of the current legislation of Ukraine and case papers and therefore it is subject to cancellation.

Checking legality and justification of the decision made by local economic court on case, the court considers that the Trial Court fully and comprehensively found out and checked all facts of the case, gave proper legal treatment to the proofs collected on case and made the correct decision on the substance of dispute which meets case papers and the requirements of the law which regulates these legal relationship.

Based on given, being guided by the Art. of Art. 111-5, 111-7, 111-9, 111-10, 111-11 of the Economic Procedure Code of Ukraine, the court DECIDED:

To satisfy the writ of appeal of JSC Sumy Machine-building Scientific and Production Association of Frunze.

To repeal the resolution of the Kharkiv Economic Court of Appeal of April 5, 2007, and - to leave the decision of economic court of the Sumy region of December 4, 2006 without changes.

 

Chairman

V. Derepa

Judges

 

B. Greek

L. Stratiyenko

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info

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