RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of December 22, 2006 No. 9

About practice of application by courts of the civil procedural legislation in case of consideration of the applications on providing the claim

Providing the claim is set of legal proceedings which guarantee accomplishment of the judgment in case of satisfaction of claims.

Exact and steady observance by courts of Ukraine of regulations of the current legislation in case of consideration of the applications about providing the claim is necessary condition of implementation of tasks of civil legal proceedings which consist in fair, impartial and timely treatment and the solution of civil cases for the purpose of protection of the broken, unrecognized or disputed rights, freedoms or interests of physical persons, the rights and interests of legal entities, interests of the state.

For the purpose of identical and correct application of the current legislation concerning providing the claim the Plenum of the Supreme Court of Ukraine decides to make to courts such explanations:

1. Draw the attention of courts that on content p.1 Art. 151 of the Code of civil procedure of Ukraine (further - GPK) the single basis for providing the claim is the corresponding petition in the form of the reasoned statement of any of persons who participate in case.

Providing the claim is allowed at any stage of consideration of the case after opening of production on it (except for the case provided by the p. 4 of the Art. of 151 GPK) if rejection of measures of providing can complicate or make impossible judgment accomplishment.

2. Resolving issue concerning application of certain type providing the claim, courts shall recognize that the list of types of such providing provided in p.1 Art. 152 GPK is not exhaustive therefore in the presence of the corresponding petition also other its types, but taking into account the restrictions set by the p. 4 of the specified Article can be applied. It is inadmissible to provide the claim by stop of accomplishment of judgments which took legal effect.

Courts should consider that for separate categories claims can be provided by means of special events which are regulated by regulations of the relevant laws (for example, Art. 53 of the Law of Ukraine of December 23, 1993 N 3792-XII in edition of the Law of July 11, 2001 N 2627-III, with subsequent changes) "About copyright and the related rights".

3. According to item 1 p.1 Art. 152 of HPK the claim of property nature is allowed to be provided by property attachment or money which belongs to the defendant and are at it or at other persons.

Based on this Item with the purpose to provide accomplishment of the judgment in the future it is possible to seize also the shares issued in any form which defendant owns and are at it or at other persons as such arrest does not stop and does not limit other rights of members of society, including the participation right in management the last, on receipt of information on its activities and dividends.

4. Considering the application for providing the claim, the court (judge) shall be convinced taking into account the proofs provided by the claimant in confirmation of the requirements, in particular, that between the parties really there was dispute and there is real threat of failure to carry out or difficulty of accomplishment of the possible judgment about satisfaction of the claim; find out amount of claims, data on the identity of the defendant, and also compliance of type of providing the claim which asks to apply person who filed such petition, to claims.

In case of establishment of the specified compliance it is necessary to consider that the taken measures shall not interfere with economic activity of the legal entity or physical person which performs such activities and it is registered according to the law as the entrepreneur.

Resolving issue of providing the claim, the court shall take into account interests not only of the claimant, but also other persons whose rights can be violated in connection with application of adequate measures. For example, restriction of possibility of business entity to use and dispose of own property sometimes leads to irreversible effects.

5. By hearing of cases which subject is the appealed decision of general meeting of economic society courts need to consider that prohibition to hold such meeting violates the participation right in them and management of those his participants of society who did not appeal this decision, and contradicts content of measures of providing N about the purpose of their application which consists in protection of interests of the participant of process, but not in deprivation (violation) of the rights of other persons.

The court shall not take such measures of providing the claim which are connected with intervention in internal activities of economic societies (for example, to prohibit to convene general meetings of society, to constitute the list of shareholders who have the participation right in them, to provide the shareholder register and rooms for holding meetings, to sum up the vote results concerning agenda and so forth).

In cases on protection of labor or corporate laws providing the claim by stop of action of the decision on release of the claimant from work and the obligation of the defendant and other persons not to interfere with the claimant in accomplishment of the previous labor obligations by it as thus the decision without substantive prosecution is actually made would not be allowed.

6. Real opportunity to protect the rights in case of the solution of the statement about providing the claim as there is risk of drawing losses by it if the claim or actions for its providing connected with substantive restrictions will be unreasonable shall be guaranteed to persons who participate in case. Therefore, allowing providing the claim, court according to the p. 4 of the Art. 153 GPK have the right to assign debt to the claimant to post into the deposit account of court the bail sufficient to prevent abuse of providing the claim (however its size shall not exceed the claim price size). On content of this regulation court (judge), having determined type of providing the claim and the amount of pledge, shall note in the corresponding determination that the last addresses accomplishment immediately after introduction of subject of pledge in complete size.

If measures of providing the claim are applied at the initiative of the prosecutor or persons who on the law are granted the right to take a legal action behind protection of the rights, freedoms and interests of other persons, then their statement shall be in any manner confirmed by person for the benefit of whom they act as compensation of possible losses and its providing is performed only at the expense of this person.

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