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:

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.

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.

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.

The issue of providing the claim is resolved by the judge solely or court in judicial session (depending on stage of consideration of the case) in day of receipt of the statement.

9. Draw the attention of courts that according to parts 9, of 10 stations 153 GPK determination about providing the claim is carried out immediately, and its appeal, unlike determination about cancellation of this providing, does not stop its accomplishment, and also does not interfere with further review of case.

10. Measures of providing the claim have temporality and are effective before accomplishment of the judgment with which substantive prosecution comes to an end. In view of it, the court in case of satisfaction of the claim has no right to cancel the taken measures before accomplishment of the decision or change of method of its accomplishment, except as specified, when need for providing the claim for one reason or another disappeared or circumstances which caused its application changed.

12. Ceased to be valid.

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