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RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 16, 2007

About removal of obstacles in use of property

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of July 26, 2007 it is refused to open production on review)

Case No. 30/145-42/243

NAME OF UKRAINE

The Supreme Economic Court of Ukraine as a part of board of judges: Nevdashenko L. P. - chairman, Mikhaylyuka M. V., Dunayevskoy N. G.

having considered in proceeding in open court in Kiev the writ of appeal of Nikolayevskoye Limited liability company on the resolution of the Kiev Economic Court of Appeal of January 30, 2007 on case N30/145-42/243 of Economic court of the city of Kiev on the claim of Nikolayevskoye Limited liability company, Kiev, in: 1) Consolidation of co-owners of the apartment house "Architect", Kiev, 2) the Collective company for servicing of housing "Master-1", Kiev, about removal of obstacles in use of property,

with the participation of agents of the parties:

the claimant - Nikolayevskoye LLC - Slyusar O. T. (Dov. N3 of 23.06.2006), (Dov. N8 of 25.04.2007);

the defendant - OSBB "Architect" - Matveev O. O. (Dov. of 01.08.2005); Makar I. I., Bagel S. I., Ivashchuk L. A. (Dov. of 07.10.2004);

ESTABLISHED:

In June, 2005 the claimant - Nikolayevskoye Limited liability company made in economic court the claim to defendants: To consolidation of co-owners of the apartment house "Architect" and the Collective company for servicing of housing "Master-1" about removal of obstacles in use of property.

Specified that it, based on the purchase and sale agreement of the October 31, 2001 signed with Fund of privatization of utility property of the Old Kiev district of Kiev is the owner of the non-residential premise Ploshchad 231,7 of the sq.m located in the cellar of the house N4 on Ulitsa Gorodetskogo in Kiev.

Referring to violation by the defendant of its rights of the owner and creation of obstacles by it in use of the room, the claimant asked to meet its requirements.

The dispute was considered by courts repeatedly.

During new trial of case by local economic court the instructions of the Supreme Economic Court of Ukraine specified in the resolution of February 15, 2006 in the matter of N30/145, are considered arguments and objections of the parties are checked, the legal status of property is established and circumstances of access to the room are found out.

On July 18, 2006 the claimant appealed to local economic court with the declaration of abandonment of claims to the Collective company for servicing of housing "Master-1".

The decision of Economic court of the city of Kiev of October 10, 2006 (board of judges in structure: Palamar P. I. - the chairman, V.V.'s Bull-trout, Yarmak O. M.) proceeedings of N30/145-42/243 regarding requirements to the Collective company for servicing of housing "Master-1" are stopped, are refused other part of the claim.

The resolution of the Kiev Economic Court of Appeal of January 30, 2007 (board of judges in structure: Razvalyaeva T.S.predsedatelstvuyushchy, Novikova M. M., Martyuk A. I.) the decision is left without changes.

Judgments are motivated with the fact that requirements of the claimant, about removal of obstacles in use of property, are not subject to satisfaction in connection with absence of proof of the fact of violation by the defendant of its property right to the non-residential premise by Ploshchad 231,7 of sq.m.

Regarding cessation of production for the reasons which are provided by item 4 p.1 the Art. 80 GPK of Ukraine concerning requirements to the Collective company for servicing of housing "Master-1", the judgment is motivated that the claimant refused the claim in this part.

In the writ of appeal Nikolayevskoye Limited liability company, referring to violation of regulations of the substantive right by court and the wrong application of regulations of procedural law, asks the resolution of the Kiev Economic Court of Appeal of January 30, 2007 on this case to cancel completely, the decision of Economic court of the city of Kiev of October 10, 2006 to cancel regarding refusal in satisfaction claims and to make the new decision which to satisfy claims.

By the beginning of consideration of the claim in essence in judicial session on April 25, 2006 the representative of Nikolayevskoye LLC - Slyusar O. T., withdrawal of board of judges in structure is declared: Nevdashenko L.P.predsedatelstvuyushchy, Mikhaylyuka M. V., Dunayevskoy N. G. For the solution of question of withdrawal of board of judges case N30/145-42/243 was transferred to the Chairman of the Supreme Economic Court of Ukraine in this connection in judicial session the break till May 16, 2007 to 10 hours 30 min. was announced.

The branch declared by the claimant's representative was rejected by determination of the Chairman of the Supreme Economic Court of Ukraine of April 26, 2007, consideration of the writ of appeal is continued to 10 hours 30 min. on May 16, 2007.

In judicial session on May 16, 2007 by the representative of the claimant submits the application for withdrawal of board of judges: Nevdashenko L.P.predsedatelstvuyushchy, Mikhaylyuka M. V., Dunayevskoy N. G.

As the withdrawal of board of trial judges of N30/145-42/243 declared by the claimant's representative was rejected by determination of the Chairman of the Supreme Economic Court of Ukraine of May 16, 2007, consideration of the writ of appeal is continued to 12 hours 30 min.

After break in judicial session on May 16, 2007 removals of structure of board of judges are not declared, however истцаСлюсар O. T. is declared by the representative the petition for consideration of the case without its participation then will leave courtroom.

Having considered case papers and arguments of the writ of appeal, having checked correctness of application by courts of regulations of substantive and procedural law in permission of this dispute, the board of judges finds necessary the writ of appeal to leave without satisfaction, for such reasons.

According to the explanations of the Plenum of the Supreme Court of Ukraine stated in item 1 of the Resolution of 29.12.1976 to N11 "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.

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.

The decision local and the resolution of Appeal Court meet the specified requirements as are based on comprehensive, complete and objective examination in legal procedure of all facts of the case in their set.

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