of June 2, 2006 No. 01-8/1228
About some questions of practice of application of regulations of the Economic Procedure Code of Ukraine which are brought up in reports about work of economic courts in 2005
Based on studying of reports about work of economic courts of Ukraine in 2005 the Supreme Economic Court of Ukraine performed generalization of the questions which are brought up in reports on application in the dispute resolution of some regulations of the Economic Procedure Code of Ukraine (further - GPK) and considers to bring expedient answers to the specified questions to the attention of economic courts of Ukraine.
1. Whether the bodies specified in article 4 of the Decree of the Cabinet of Ministers of Ukraine "About the state fee" shall pay the state fee, appealing to economic court based on regulations of Civil or Economic codes of Ukraine?
In subitem 4.7 of item 4 of explanation of presidium of the Supreme Arbitration Court of Ukraine of 04.03.1998 No. 02-5/78 "About some questions of practice of application of the Section VI of the Economic Procedure Code of Ukraine" is specified that when separate bodies about which it is in article 4 of the Decree of the Cabinet of Ministers of Ukraine of 21.01.1993 No. 7-93 "About the state fee" appeal to economic court not in connection with accomplishment of the powers of authority, they shall pay the state fee in general procedure.
Therefore, if the relevant organ appeals to economic court based on regulations of Civil or Economic codes of Ukraine concerning the title document (the economic agreement) which party is this body (in connection with purchase and sale, lease, the contract and so forth), it shall pay the state fee in accordance with general practice.
2. Whether it is possible, considering instructions of part four of Article 22 GPK, simultaneous change of the bases and subject of action?
On content of the specified GPK regulation change by the claimant of the bases and subject of action can take place only alternatively therefore their simultaneous change is impossible. Therefore, in case of giving by the claimant of the petition (statement) directed to simultaneous change of subject and basis of the claim, the economic court taking into account specific circumstances shall refuse satisfaction of such petition (statement).
3. Whether increase in the size of claims with presentation of additional claims can be connected?
Under increase in the size of claims (Article part two 22 GPK it is necessary to understand increase in sum in dispute according to the same requirement which was declared in the action for declaration (paragraph two of subitem 3.7 of Item 3 explanations of presidium of the Supreme Arbitration Court of Ukraine of 18.09.1997 No. 02-5/289 "About some questions of practice of application of the Economic Procedure Code of Ukraine").
Therefore increase in the size of claims cannot be connected with presentation of additional claims about which not there was a speech in the action for declaration. If such additional claims are connected with earlier declared claims, the basis of origin or the submitted proofs (for example when claim is submitted on the amount of principal debt and the claimant before decision making asks to collect in addition penalty fee for payment delay), then they can be shown with observance, in particular, of instructions of article 58 HPK.
4. Whether copies of messages on delivery of the recommended correspondence can be considered as proofs of accomplishment by economic court of duty to inform to participants of legal procedure about making of certain legal proceedings, are returned by bodies of communication because of impossibility of delivery to the addressee?
Establishment of the actual location of legal entities or the place of residence of physical persons - participants of legal procedure for the period of making of these or those legal proceedings is not referred to powers of economic courts. Therefore the copies of messages on delivery of the recommended correspondence returned by bodies of communication with the marks "the addressee was disposed", "addressee is absent", etc. taking into account the specific facts of the case can be considered as competent evidences of accomplishment by economic court of duty to inform to participants of legal procedure about making of certain legal proceedings by this court.
5. What shall be actions of local economic court in case of receipt of the message of body of communication by it about delivery to the participant of legal procedure of the procedural document sent it if materials of the corresponding case are in court of appeal or cassation instance?
If for the period of the sending received appeal or the writ of appeal (representation) together with case by local economic court to the relevant Appeal or cassation economic court (part three to Article 91 or Article part two 109 GPK the specified message did not arrive in local economic court yet, the last can and shall send immediately after receipt of such message it to Appeal or cassation economic court which performs review of the judgment.
6. Whether the economic court of appellate instance shall check legality and justification:
decisions of local economic court in full if only part of such decision was appealed;
others, besides, which was appealed, the judgments made by economic court on specific case?
According to the instruction of part two of Article of 101 GPK the arguments stated in the petition for appeal are not obligatory for economic court of appellate instance. The last checks legality and justification of the decision of local economic court in full.
Therefore, if in appellate instance only part of the judgment is appealed, the court shall check legality and justification and that its part concerning which there are no arguments of person who made the petition for appeal.
This rule concerns check of legality and justification only of that judgment which is appealed in appeal procedure, and does not extend to other judgments made by economic court on specific case.
7. What provisions of resolutions of cassation instance have nature of obligatory instructions for Trial Court in new trial of case?
The law does not contain instructions about what provisions of resolutions of cassation instance have nature of obligatory instructions for Trial Court in understanding of part one of article 111-12 GPK, determining only circle of questions on which such instructions cannot be provided (part two of the same Article). Therefore in the solution of appropriate question it is necessary to consider in our opinion in each separate case circumstances of certain case and specific content of the obligatory instructions of cassation instance containing in its resolution.
At the same time it must be kept in mind provided in paragraph three of Item 10 of explanation of presidium of the Supreme Economic Court of Ukraine of 28.03.2002 No. 04-5/367 "About some questions of practice of application of the Section XII-1 of the economic Procedure Code of Ukraine", especially in the second and third offers of this paragraph.
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