of March 18, 2008 No. 01-8/164
About some questions of application of regulations of the Economic Procedure Code of Ukraine which are brought up in reports about work of economic courts in 2007
(as of June 29, 2010)
Based on studying of reports about work of economic courts of Ukraine in 2007 the Supreme Economic Court of Ukraine performed generalization of the questions which are brought up in reports concerning application in resolution of disputes of some regulations of the Economic Procedure Code of Ukraine (further - HPK) and considers to bring expedient answers to the specified questions to the attention of economic courts of Ukraine.
1. Whether the economic court by results of consideration of any petitions of participants of process, including oral owes, take out determination as the separate procedural document or result of such consideration shall be displayed in the judgment made as a matter of fact?
According to instructions of article 84 HPK:
- descriptive part of the decision shall contain separate statement, in particular, of petitions of the parties and their representatives, other participants of process (Item 2 parts one);
- in motivation part of the decision arguments on which the economic court rejected the petition of the parties are specified, in particular.
Therefore, results of consideration of petitions of participants of legal procedure shall be displayed in the judgment made in fact dispute.
If the economic dispute is not solved on being (adjournment of consideration of the case, stop of proceeedings, leaving of the claim without consideration and so forth), results of consideration of the petition of participants of legal procedure are displayed in the corresponding determinations.
As separate procedural document concerning each (any) petition of the participant of process of HPK does not provide obligatory removal of determination. At the same time it is in case of need possible and even removal according to the specified petition of such determination, for example, in the solution of question of removal of the judge (part five of article 20 HPK), on suppression taking measures (part five of article 43-4 HPK), on taking measures to providing the claim (article 66 HPK), change of method and procedure for accomplishment of the judgment (article 121 HPK) and so forth is necessary.
Oral statements and petitions of participants of legal procedure shall be specified in the protocol of judicial session (Item 6 parts two of article 81-1 HPK), and results of consideration of such petitions (with statement of the compressed content of the last) shall be displayed in relevant decisions and determinations of economic court.
2. Whether the claim about recognition invalid the title document and acts of acceptance - cessions of property which how it is established by economic court, process the relevant title document is subject to consideration in economic court?
Article 12 HPK does not carry to jurisdiction of economic courts of case on disputes on recognition invalid acts of acceptance transfer as such.
At the same time, if the court finds out that the title document is processed by signing of acts of acceptance transfer of products by the parties, the dispute on recognition of such title document invalid is subject to the decision economic court in accordance with general practice, and as subject of the corresponding dispute title document, but not specified acts acts.
3. By what rules of legal proceedings cases on claims in whom requirements about recognition of the property right to certain property and about recognition invalid decisions of local government body according to which such right is actually denied are united shall be considered?
By what rules of the Procedure Code the claim about cancellation of the certificate on the property right shall be considered if the public authority acts only as the registrar of the appropriate right?
In the solution of appropriate questions it is necessary to consider such provisions of recommendations of presidium of the Supreme Economic Court of Ukraine of 27.06.2007 N 04-5/120 "About some questions of jurisdiction and cognizance of cases to economic courts":
- economic courts in accordance with general practice solve the disputes connected with protection of the property right including with recognition of this right (Item 3);
- hearing of cases on disputes on appeal only of such decisions made by the subject of powers of authority which the last obliges the subject of housekeeping to make certain actions to refrain from making of certain actions or to bear responsibility is not within the competence of economic courts provided that the appealed act according to the legislation of Ukraine is mandatory; other cases with the assistance of subjects of housekeeping and subjects of powers of authority have no signs of cases of administrative jurisdiction and shall be considered by economic courts in accordance with general practice (Item 5).
4. Whether the dispute over the claim of executive directorate of Social Insurance Fund from labor accidents and occupational diseases of Ukraine about collection of the capitalized payments in case of liquidation of the legal entity is economic?
In the corresponding relations executive directorate Fonda acts as the subject of powers of authority in system of obligatory national social insurance and therefore case on not the subordinated economic court specified to dispute (see also Items 3, of 5 and 11 recommendations of presidium of the Supreme Economic Court of Ukraine of 27.06.2007 N 04-5/120 "About some questions of jurisdiction and cognizance of cases to economic courts").
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