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INFORMATION LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of August 6, 2008 No. 01-8/471

About some questions of practice of application in resolution of disputes of separate regulations of procedural law (on the materials considered by the Supreme Court of Ukraine)

For the purpose of ensuring identical and correct court practice we consider necessary to inform economic courts legal line items which are connected using the Supreme Court of Ukraine of some regulations of procedural law and found display in its resolutions.

1. Non-compliance with part two of article 188 of the Economic code of Ukraine by the claimant of requirements concerning obligation to send to other party of the offer on agreement cancelation does not deprive of the claimant of the right to take a legal action behind protection of the violated right by making of the direct action of rescission of the agreement.

The part two of article 188 of the Economic code of Ukraine provides that the agreement party which considers necessary to change or break off the agreement, shall send offers on it to the second agreement party.

In consideration of the case, connected using, in particular, the given regulation, the Supreme Court of Ukraine noted the following.

According to part two of article 124 of the Constitution of Ukraine jurisdiction of courts extends to all legal relationship which arise in the state.

As the provision of part two of article 124 of the Constitution of Ukraine concerning distribution of jurisdiction of courts is specified all legal relationship which arise in the state in substantive provisions of the solution of the Constitutional Court of Ukraine of 09.07.2002 in the matter of rather official interpretation of provision of part two of article 124 of the Constitution of Ukraine (case on pre-judicial dispute settlement), in aspect of the constitutional address it is necessary to understand so that the right of person (the citizen of Ukraine, the foreigner, the stateless person, the legal entity) on appeal to the court behind dispute decision cannot be limited to the law, other regulatory legal acts.

Under such circumstances non-compliance with part two of article 188 of the Economic code of Ukraine by the claimant of requirements concerning obligation to send to other party of the offer on agreement cancelation, in case of such need, does not deprive of the claimant of the right to address for protection of the violated right by making of the direct claim the defendant about termination of the disputed agreement.

According to part one of Article 652 of the Civil code of Ukraine in case of essential change of circumstances by which the parties were guided in case of the conclusion of the agreement the agreement can be changed or broken off with the consent of the parties if another is not established by the agreement or does not follow from obligation essence. Change of circumstances is essential if they changed so that if the parties could provide it, they would not sign the agreement or would imprison him on other conditions.

According to part two of the specified Article of the Civil code of Ukraine if the parties did not reach consent concerning reduction of the contract in compliance with circumstances which significantly changed, or concerning its termination, the agreement can be broken off by a court decision upon the demand of the concerned party (the resolution of the Supreme Court of Ukraine of 17.06.2008 of N 8/32pd).

2. The third party who does not declare independent requirements regarding dispute can be recruited by economic court in case only when the decision on economic dispute can affect its rights or obligations concerning one of the parties.

The claimant and the defendant in case properly signed by results of tender the lease agreement of the parcel of land (daleedogovor) which met the requirements of the legislation and was carried out by the parties.

By the decision of economic court satisfaction of the claim for recognition of the Agreement with invalid it was refused.

The company which was not agreement party (daleepredpriyaty), considered that he should have been recruited in case as the third party who does not declare independent requirements regarding dispute because this decision concerns its rights and obligations as the respective site was in its use earlier and it appealed results of the mentioned tender.

The Supreme Court of Ukraine did not agree with such arguments of the Company in view of the fact that: cognizance item on case was recognition invalid the Agreement which party the Company is not, and appeal of results of tender by the last by which this agreement is signed was not and could not be subject of assessment of court which considered case (the resolution of the Supreme Court of Ukraine of 10.06.2008 N 9/460-07).

3. The claim of the subject of housekeeping about recognition invalid the act of state body concerning cession of property in property to other subject of housekeeping has private-law nature and is not subject to consideration according to the procedure of administrative legal proceedings.

According to Item of 1 part one of article 17 of the Code of administrative legal proceedings of Ukraine (further - CASH DESKS of Ukraine) competence of administrative courts extends to disputes of physical persons or legal entities with the subject of powers of authority on appeal of its decisions (regulatory legal acts or legal acts of individual action), actions or divergence.

According to Item of 1 part one of Article of 3 CASH DESKS of Ukraine case of administrative jurisdiction is the public dispute transferred to the decision of administrative court in which at least one of the parties is the executive body, local government body, their official either the official or other subject who performs imperious managerial functions based on the legislation, including on accomplishment of the delegated powers.

Recognition invalid orders of public authority which concern transfer into the ownership of non-residential premises was matter in issue on case. I.e. the specified claim was based on the property right which has private-law nature.

This claim was not administrative as requirements of the claimant did not concern protection of its rights, freedoms and interests in the field of the public relations from violations from public authorities (the resolution of the Supreme Court of Ukraine of 27.05.2008 N 3/257-2/345).

4. The dispute on the property right to property, is not connected with the public relations and is not subject to the decision according to the procedure of administrative legal proceedings.

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