RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 24, 2007

About claiming damages

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 09.08.2007 it is refused to open production on review)

Case No. 12/579

NAME OF UKRAINE

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

chief judge: Dobrolyubova T. V.

judges: Gogol T. G., Prodayevich L.V.

having considered materials of the writ of appeal of the State company "Agency on Debt Restructuring of the Companies of Agro-industrial Complex"

on the resolution of the Kiev Economic Court of Appeal of 12.02.07

on case N12/579

in the claim of the State company "Agency on Debt Restructuring of the Companies of Agro-industrial Complex" (further - the Agency)

to the State-owned joint stock company "Bread of Ukraine" (daleekompaniye)

about collection of 3rd 732, 94 UAH of losses

representatives took part in judicial session:

from the claimant: Svatukh O. V. - on Dov. of 29.12.06 N269d

from the defendant: Vilchinskaya N. I. - on Dov. of 06.10.06 N12-14/58

The state company "Agency on Debt Restructuring of the Companies of Agro-industrial Complex" in September, 2006 declares the recovery suit from the State-owned joint stock company "Bread of Ukraine" 3 732, of 94 UAH of the principal debt transferred to the claimant on distribution balance of 31.07.03. The claimant proved requirements by Articles 107, of 109, of 512, of 519, of 526, 530 Civil codes of Ukraine, article 59 of the Economic code of Ukraine and Item 3 of the Resolution of the Cabinet of Ministers of Ukraine N690 of 15.05.03. During consideration of dispute in the Agency Trial Court changed claims and asked to exact from the defendant 3732, 94 UAH of the loss in the form of loss of property rights caused by transfer of the invalid requirement to Vasilkovsky Open joint stock company. The claimant referred to instructions of Articles 16, of 22, of 190, of 519, 623 Civil codes of Ukraine and article 224 of the Economic code of Ukraine.

Decision of economic court of the city of Kiev of 06:12. 06, the accepted judge Prokopenko L. V., claims are satisfied completely. The local court proved the decision by instructions of Article 22 of the Civil code of Ukraine, article 224 of the Economic code of Ukraine and Article 198 of the Civil code USSR. As court it is recognized that the defendant as primary creditor shall answer to the new creditor - the claimant for invalidity of the requirement transferred to it. The court recognized that determination of economic court of the Cherkassk region made of 06.05.03 the decision on liquidation of JSC Vasilkovsky. Creditor requirements to the debtor were not declared by the defendant. Therefore the court determined that for the period of signing of the act of acceptance transfer of receivables of JSC Vasilkovskoye to distribution balance the debt of the last already was hopeless.

The Kiev Economic Court of Appeal as a part of board of judges: Kapatsin N. V. - the chairman, Ropy L. M., Zelenina V. O., the resolution of 12.02.07 cancelled the checked decision on case, refused satisfaction of claims. The Appeal Court determined that receivables are transferred to the claimant based on the administrative act owing to reorganization of the defendant, but not owing to declaration of will of the parties or their economic activity. Besides, the court specified that the requirement of the claimant about claiming damages in the form of the lost property rights based on article 224 of the Economic code of Ukraine and Article 22 of the Civil code of Ukraine is unreasonable as the agreement of the party was not signed, receivables are listed in the act without proper documentary reasons and specifying of its specific signs - details. Thus the Appeal Court recognized that there are no confirmations of losses in general.

The state company "Agency on Debt Restructuring of the Companies of Agro-industrial Complex" appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which it asks the resolution to cancel on case as accepted with violation of regulations of the procedural and substantive right, and the decision on case to leave without changes. The complainant refers to the wrong application of instructions of Articles by Appeal Court 197, 198 Civil codes USSR and violation of requirements of Articles 4, 202 same Codes. Together with it specifies inaccuracy of the conclusions of court about absence between the parties of the contractual commitments connected with right to claim concession based on the act of acceptance transfer of receivables. At the same time the applicant specifies that applying Articles 611, of 614, 623 Civil codes of Ukraine, the court incorrectly established nature of legal relationship between the parties and came to wrong conclusion about impossibility of application of regulations of the civil legislation which provide responsibility of primary creditor for invalidity of the requirement. The agency specifies availability in actions of the defendant of element of civil offense.

From the State-owned joint stock company "Bread of Ukraine" the comment on the writ of appeal in which the Company asks the resolution to leave on case without changes, and the writ of appeal - without satisfaction is received.

The Supreme Economic Court of Ukraine, having heard the report of the judge Dobrolyubova T. V. and explanations of agents of the parties, having reviewed case papers and arguments of the writ of appeal, having checked correctness of application by economic Appeal Court of instructions of the current legislation, notes the following.

According to part 1 of Article 111-7 of the Economic Procedure Code of Ukraine, reviewing in cassation procedure judgments, cassation instance based on the actual established facts of the case checks application by court of the first or appellate instance of regulations of substantive and procedural law.

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