RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 17, 2007

About money recovery

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 12.07.2007 it is refused to open production on review)

Case No. 21/203-06

NAME OF UKRAINE

The highest economic to court of Ukraine as a part of board of judges: K. V. Greyts - the chairman, S. V. Bakulina, O. V. Muravyev

having considered the writ of appeal of Private agricultural enterprise of Agrofirmi Russia

on determination of 22.02.2007

Dnipropetrovsk Economic Court of Appeal

in the matter of economic court of the Dnipropetrovsk N21/203-06 region

in the claim of Private agricultural enterprise of Russia Agricultural firm

to Optimus LLC

3rd person without independent requirements - Ukrainian industrial bank LLC on behalf of the Zaporizhia branch

about collection 1002862, 22 UAH.

with the assistance of representatives:

- the claimant - Kiyan M. V.

- the defendant - Chumakova N. E.

- 3-and persons - Polyakova O. E.

ESTABLISHED:

The decision of board of judges of economic court of the Dnipropetrovsk region of 14.11.2006 (as a part of the chief judge Almazova I. V., Melnichenko I. F. judges., Parkhomenko N. V.) to Optimus LLC with the assistance of the third party without independent requirements of Ukrainian Industrial Bank LLC on behalf of the Zaporizhia branch about collection 1002862, 22 UAH for failure to pay products under the contract N18-364/05 are refused of 20.12.2005 satisfaction of claims of Private agricultural enterprise of Russia Agricultural firm.

The decision is motivated that the claimant does not provide indisputable proofs of fault of the defendant about failure to pay products received from the claimant, instead the defendant fact in evidence of money transfer into the account opened addressed to the claimant.

Board of judges of the Dnipropetrovsk Economic Court of Appeal (as a part of the chief judge Logvinenko A. O., Pavlovsky P. P. judges, Chus O. V.), performing appeal check according to the plaintiff's application, determination of 22.02.2007 stopped proceeedings of N21/203-06 with reference to sending of case papers to investigation department of Regional Office of the Ministry of Internal Affairs of Ukraine in the Zaporizhia region.

Determination in the matter of is motivated with the fact that results of investigation of the criminal case brought according to the plaintiff's declaration regarding establishment of circumstances of opening of the dummy account addressed to Agrofirmi's PSP Russia and identification of person, guilty of it, has direct value for the solution of the matter of argument on accomplishment of Optimus LLC properly of the economic obligation.

Without agreeing with determination of the Dnipropetrovsk Economic Court of Appeal, the Private Russia Agricultural firm agricultural enterprise in the submitted writ of appeal asks to cancel the specified determination, referring to the fact that the economic court of appellate instance has no such powers, and, besides, there were no obstacles for substantive prosecution as UMVS of Ukraine provided by investigation department in the Zaporizhia region the answer contains the specific conclusion about lack of legal relationship between Arofirm's PSP Russia which director is Nikolayenko A. M., and ZF Ukrprombank LLC where the defendant transferred funds for the received products.

Optimus LLC in response on the writ of appeal asks to leave it without satisfaction as unreasonable, and determination of Appeal Court - without changes as it which meets the requirements of the existing procedural legislation of Ukraine as considers that results of consideration of criminal case will matter for dispute decision on this case.

The structure of board of judges which according to determination accepts of 27.04.2007 in production the writ of appeal on case is changed by the order of the acting as the Chairman of trial chamber of the Supreme Economic Court of Ukraine of 17.05.2007 of N02-12.2/94.

Having heard in proceeding in open court of explanation of agents of the parties, having checked correctness of application by Appeal Court of regulations of procedural law, the board of judges of the Supreme Economic Court of Ukraine came to conclusion that the writ of appeal is subject to satisfaction, proceeding from the following.

The economic Procedure Code of Ukraine provides two types of stop of proceeedings: the obligatory, specified in the law, in the presence of which economic court shall stop proceeedings (p.1 the Art. 79 GPK), and optional, optional to economic court, but which is applied at its discretion, in particular, in cases of sending by economic court of materials to investigating bodies (item 2 of the p. 2 of the Art. 79 GPK).

However, proceeding from content of regulation of the Art. 79 GPK of Ukraine, necessary premises for application of such optional type of stop of proceeedings shall be circumstances which interfere with its consideration on the merits of the declared claims, and sending of case papers to investigating bodies is possible according to the Art. 90 GPK of Ukraine if in case of the decision of economic dispute the economic court finds in activities of employees of the companies and organizations of violation of legality which contain signs of action which was pursued in criminal procedure.

Stopping proceeedings, the Appeal Court recognized that in the course of investigation of the criminal case brought according to the plaintiff's declaration of rather unknown person involved in opening of the dummy account addressed to Agrofirmi's PSP Russia in the Zaporizhia branch Ukrainian Industrial Bank LLC circumstances which have direct value for the solution of the matter of argument on accomplishment of Optimus LLC properly of the economic obligation on payment of products under the contract N18-364/05 of 20.12.2005 will be perhaps established.

However, it is impossible to agree with the given motives of stop of proceeedings as, the facts determined according to the procedure of criminal investigation can be obligatory for economic court only in cases when matter in issue is civil effects of guilty actions.

In this case subject of the declared claim are requirements about availability or absence at the defendant of the obligation in payment of the delivered products, therefore, on this matter the court can make the conclusions irrespective of results of criminal investigation based on assessment of the evidence produced by the parties or collected on own initiative by consideration of this case and therefore proceeedings for the given motives it is impossible to recognize stop reasonable.

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