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SURVEY LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of November 12, 2008 No. 01-8/676

About some questions of practice of resolution of disputes connected using economic courts of the legislation on information (on the materials considered in cassation procedure by the Supreme Economic Court of Ukraine)

According to the procedure of information and for accounting in hearing of cases the overview of the disputes solved by economic courts on which judgments are reviewed in cassation procedure by the Supreme Economic Court of Ukraine is sent.

1. The right to confutation of unreliable information belongs not only to physical, but also legal entities in the cases provided by the law and therefore disputes of the specified category are subordinated to economic courts in accordance with general practice.

The local economic court with which the economic court of appellate instance agreed refused adoption of the action for declaration about protection of goodwill and confutation of unreliable information. Judgments with reference to Articles 1, of 12, Item of 1 part one of Article 62 of the Economic Procedure Code of Ukraine (further - HPK) are motivated with the fact that disputes of the specified category are not subordinated to economic courts.

Canceling the corresponding judgments with case referral for consideration of Trial Court, the Supreme Economic Court of Ukraine noted, in particular, the following.

In Article 299 of the Civil code of Ukraine (further - the Civil Code of Ukraine) it is specified that the physical person has the right to immunity of the goodwill. The physical person can take a legal action with the claim for protection of the goodwill.

In compliance with part one of Article 91 of Civil Code of Ukraine the legal entity is capable to have the same civil laws and obligations (civil legal capacity), as well as physical person, except those which by the nature can belong to the person.

The right to immunity of the goodwill belongs to the personal non-property rights of physical person which provide social life of physical person. This right by the nature can belong not only to the physical, but also legal entity.

According to instructions of part one of Article 277 of Civil Code of Ukraine the physical person which personal non-property rights are violated owing to distribution about it and (or) members of his family of unreliable information has the right to the answer, and also to confutation of this information. By the legal nature the right to confutation of unreliable information, the stipulated in Article 277 Civil Code of Ukraine, belongs not only to physical, but also legal entities as this right can be used by business entity (entrepreneur) as method of judicial protection concerning distribution of information which harms its goodwill.

Therefore, on contents of the provided instructions of the current legislation person about whom unreliable information is widespread has the right to confutation even if such distribution did not do harm to its goodwill. Besides, according to instructions of article 47 of the Law of Ukraine "About information" involves violations of the law of Ukraine about information, in particular, and civil responsibility according to the legislation of Ukraine. Among violations of this legislation distribution of data which do not answer reality also is provided in the provided Article.

According to Article 277 of Civil Code of Ukraine confutation of unreliable information is performed by person who distributed information. Confutation of unreliable information is performed by the same method by which it was extended.

According to part one of Article 16 of Civil Code of Ukraine each person has the right to take a legal action behind protection of the personal non-property or property right and interest. The part two of this Article determines methods of protection of the civil laws and interests.

Considering provisions of the specified regulation and the principle of dispositivity in economic legal proceedings, the claimant has the right to freely choose methods of protection violated the right or the interest and, in particular, to determine the defendant in the requirements and so forth.

Thus, the method of protection of its violated right chosen by the claimant answers method which is established in Article 277 of Civil Code of Ukraine.

In Item 6 of the resolution of the Plenum of the Supreme Court of Ukraine from 28.09.90 N 7 "About application of the legislation by courts which regulates protection of honor of advantage and goodwill of citizens and the organizations" it is specified that:

the physical person or legal entity which spread the information which discredits the claimant can be the defendant on the case of honor and dignity protection;

if the claim is made about confutation of the data published in the press or distributed by other mass media (on radio, television) as defendants are attracted the author and relevant organ of mass information (the editorial office, the agency, other body which performed release of information). In case of the publication or other distribution of data without designation of the author the body of mass information upon the demand of court shall call person who provided the information about which confutation the claim is made.

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