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GENERALIZATION OF THE SUPREME COURT OF UKRAINE

of November 24, 2008

Practice of consideration by courts of civil cases about recognition of transactions invalid *

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* Generalization is prepared for printing by judges of the Supreme Court of Ukraine Ya. M. Romaniuk, V.Y.Kosenko and the senior consultant of management of studying and generalization of court practice Z. P. Melnik.

Indivisible element of the market relations is sdelkanaiboly the widespread dispositive fact with which the law connects origin, change and the termination of civil legal relationship. The term "transaction" is the short story in the Civil code of Ukraine 2003 (further - group of companies).

The paragraph of 2 hl is devoted to invalidity of transactions. 16 section IV (Article 215 - 236 groups of companies); provision of the Economic code of Ukraine 2003 about invalidity of the economic obligation (Article 207, 208); separate regulations about invalidity of transactions also contain in the special legislation (for example, in the legislation on privatization, the Law of May 12, 1991 N 1023-XII "About consumer protection", the Law of October 6, 1998 N 161-XIV "About lease of land" and so forth).

Due to the emergence of fresh wordings, approaches and estimating categories in the new Civil Code between it and the special legislation there are certain collisions concerning invalidity of transactions, and it leads to unequal interpretation and application of the legislation by courts in this sphere. The specified factors are the reason of mistakes which are made by courts by consideration of disputes on invalidity of transactions therefore studying and generalization of court practice of resolution of disputes of this category are necessary.

The generalization purpose - to analyze the state of affairs using courts of the legislation in case of resolution of disputes on recognition of transactions invalid, to find difficult and matters of argument in court practice and the legislation, to prepare offers for ensuring the correct and identical application by courts of rules of law, and also elimination of gaps in the legislation. In generalization practice of consideration by courts of civil cases for 2007 about recognition of transactions invalid according to provisions of the new Civil Code is analyzed.

 

The analysis of statistical data concerning consideration by courts of cases on recognition of transactions invalid on operational to data of Appeal Courts of Ukraine

The statistical data provided by Appeal Courts demonstrate revenues to consideration of significant amount of cases concerning recognition of transactions invalid. In 2007 in production of courts there was 19,7 of one thousand cases of this category, or 1,5 of % of total quantity of civil cases of claim production. From this number of cases 257 - cases on recognition of transactions insignificant, or 1,3 of % of total quantity of cases on recognition of transactions invalid which arrived for consideration.

The greatest number of cases on recognition of transactions invalid was in production of courts of areas: Kharkiv - 6,7 of one thousand cases, Zhytomyr - 3,6 of one thousand, Dnipropetrovsk and Kiev - one thousand 1,5; most of all cases on recognition of transactions insignificant were considered by courts of areas: Dnipropetrovsk - 139, Luhansk - 54 and Chernihiv - 14 cases. Courts considered 14,1 one thousand cases on recognition of transactions invalid, or 71,8 of % of the number of cases which were in production. Judgments are made on 10,3 of one thousand cases, or 73% of the number of the considered cases. Claims were satisfied on 8,3 of one thousand cases, or 81% of the number of the considered cases with decision making.

In structure of cases on recognition of transactions invalid the main part is constituted by cases on recognition invalid agreements. Last year courts considered 13,1 one thousand cases on recognition invalid agreements, or 92,9 of % of total quantity of the considered cases on recognition of transactions invalid.

Courts also considered 91 cases on recognition of agreements unconcluded that constitutes 0, % of the number of the considered cases on recognition of transactions invalid. The decision on 60 it to cases is made, in particular claims in 45 decisions, or 75% of the number of the made decisions are satisfied.

On claims for cases concerning interpretation of contents of the transaction courts in 2007 considered 23 cases, decided 19 decisions from which claims are satisfied in 16 decisions, or 84,2 of % of the number of the made decisions.

The smaller quantity in structure of all cases on recognition of transactions invalid is considerable constitute cases on recognition invalid unilateral transactions. In total in 2007 759 such cases, or 5,4 of % of total quantity of the considered cases on recognition of transactions are considered by invalid. For this category 539 decisions, in particular with satisfaction claims - 318 decisions, or 59% of the number of the made decisions were made. In this category the vast majority - 644, or 84,8 of % of the considered cases on recognition invalid unilateral transactions - constitute cases on recognition invalid wills. 441 decisions, in particular 263 were made on satisfaction of claims, i.e. 59,6 of % of the number of the made decisions.

 

Difficulties which arise in court practice in distinguishing of the concept "transaction" from adjacent concepts

The transaction - the lawful, i.e. not prohibited by the law, strong-willed action of the subject of civil legal relationship which is directed to establishment, change or the termination of the civil laws and obligations. Legitimacy is constitutive sign of the transaction as dispositive fact. The presumption of legitimacy of the transaction is enshrined in Art. 204 of group of companies but can be confuted first of all by the provision of the law which contains the corresponding prohibition. So, for example, if the bargain about pledge of real estate is concluded in writing, but not certified by the notary, then its legitimacy is confuted by Art. 577 of group of companies. If face constituted the will, but did not excrete part of inheritance to the one who has the right to obligatory part, legitimacy of the will is partially confuted by the corresponding instruction of Art. 1241 of group of companies. In the cases which are directly not provided in the legislation, the presumption of legitimacy of the transaction can be confuted by court.

Supplementing regulations that each person has right of defense of the civil law in case of its violation, Art. 16 of group of companies contains rather wide list of remedies of the civil laws and interests court, in particular one of them is recognition of the transaction invalid.

Invalidity of the transaction arises because action is similar to the transaction, but in essence does not answer its characteristics. Invalidity of the transaction is predetermined by availability of defects of its elements:

defects (illegality) of contents of the transaction;

defects (non-compliance) of form;

defects of subject structure;

defects of freedom - discrepancy of freedom and declaration of will.

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