of June 12, 2009 No. 2
About application of regulations of the civil procedural legislation by hearing of cases in Trial Court
For the purpose of ensuring the correct and identical application by courts of separate provisions of the civil procedural legislation the Plenum of the Supreme Court of Ukraine Decides to make to courts such explanations:
1. When implementing justice on civil cases Trial Court, steadily following regulations of substantive and procedural law, shall provide their fair, impartial and throughout the reasonable, but no more established by the law term consideration and the decision for the purpose of protection of the broken, unrecognized or challenged rights, freedoms or interests of physical persons, the rights and interests of legal entities, interests of the state.
Civil legal proceedings are performed according to the Constitution of Ukraine, the Code of civil procedure of Ukraine (further - GPK), the laws of Ukraine of June 23, 2005 No. 2709-IV "About private international law", of February 23, 2006 No. 3477-IV "About accomplishment of decisions and application of practice of the European Court of Human Rights", and also international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine, and provisions of other laws, the regulatory legal acts existing for the period of making of separate legal proceedings, consideration and the solution of case. In particular, in case of change of the amount of court fee the size determined for the period of making of certain legal proceeding (increase in the size of claims, appeal of the judgment and so forth) despite of the fact that in case of presentation of the claim it was another is applied.
2. According to provisions of Articles 55, 124 Constitutions of Ukraine and Article 3 GPK each person has the right according to the procedure, established by this Code, to take a legal action behind protection of the broken, unrecognized or challenged rights, freedoms or interests.
In the cases established by the law bodies and persons who are granted the right to protect the rights, freedoms and interests of other persons or the state or public concerns and to take part in these cases can appeal to court. Such cases are provided, in particular, in the laws of Ukraine of December 23, 1997 No. 776/97-BP "About the Representative of the Verkhovna Rada of Ukraine for human rights", of November 5, 1991 No. 1789-XII "About prosecutor's office", of June 25, 1991 No. 1264-XII "About protection of the surrounding environment", of May 12, 1991 No. 1023-XII "About consumer protection" (in edition of the Law of December 1, 2005 No. 3161-IV), of July 3, 1996 No. 270/96-BP "About advertizing" (in edition of the Law of July 11, 2003 No. 1121-IV).
Appeals to the court behind protection of the rights, freedoms and interests of other persons in the cases which are not provided by the law, are not subject to consideration. In case of receipt of such address the judge returns the application based on Item 3 parts three of Article of 121 GPK and if such nature of the address is established in preliminary judicial session or during judicial review - the court leaves the statement without consideration for the reason, stipulated in Item 2 parts one of Article 207 GPK.
The judge has the right to refuse opening proceeedings only for the reasons provided by the law. The refusal in opening of proceeedings based on absence of proof of the declared requirement, failure of evidence, the omission of limitation period and on other bases which are not provided by the law is not allowed.
The contract of the parties on transfer of dispute for consideration of reference tribunal (Article 17 GPK) is not disclaimer on appeal to the court behind protection. At the same time presentation of the claim in court in the presence of such agreement does not give the grounds for return of the statement or refusal in opening of proceeedings (Article 121, 122 GPK), except for stipulated in Item 6 parts one of Article 207 GPK of debt of court to leave the statement without consideration if from the defendant arrived prior to clarification of circumstances in the matter of objection against dispute decision in court.
4. Resolving issue of opening of proceeedings, the court shall recognize that according to article 124 of the Constitution of Ukraine jurisdiction of general courts extends to all legal relationship which arise in the state, and according to parts one and the second Article 15 GPK according to the procedure of civil legal proceedings courts consider cases on protection of the broken, unrecognized or challenged rights, freedoms or interests which arise on civil, housing, land, family, employment relationships, and also on other legal relationship, except cases when consideration of such cases according to the Code of administrative legal proceedings of Ukraine (Article 17) or the Economic Procedure Code Ukraine (Articles 1, of 12) it is carried to competence of administrative or economic courts. The law consideration of another matters on civil procedure rules can be provided.
As according to Article 16 GPK are not allowed consolidation in one production of requirements which are subject to consideration by rules of different types of legal proceedings if another is not established by the law, the court opens proceeedings regarding requirements which belong to the civil jurisdiction, and refuses opening of proceeedings concerning requirements when their consideration is carried out by rules of other legal proceedings.
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