of June 12, 2009 No. 5
About application of regulations of the civil procedural legislation which regulate proceeedings before judicial review 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. Proceeedings before judicial review are regulated by Chapter 3 of the Section III of the Code of civil procedure of Ukraine (further - GPK) in which legal proceedings of court are determined by preparation of case for judicial review and carrying out preliminary judicial session. Implementation by participants of civil process and court at this stage of process of set of the legal proceedings determined by the procedural law is obligatory as it is independent and important and creates necessary conditions for the correct and timely solution of case, adoption of the legal and reasonable judgment.
Preparation of case for judicial review begins from day of the resolution of determination on opening of proceeedings then the court instantly sends to persons who participate in case, the copy of the corresponding determination, the copy of the action for declaration with copies of the documents attached to it which according to Article part one 120 GPK the claimant shall submit to court.
The judge of the determination having no right to the resolution on opening proceeedings to perform any actions for preparation of case for judicial review, in particular, to provide the claim (except the case provided by part four of Article of 151 GPK), to hold preliminary judicial session and so forth. After opening of proceeedings the judge has no right to resolve issue of leaving the statement without movement and its return (Article of 121 GPK) or about refusal in opening of proceeedings (Article part two 122 GPK).
2. Preparing case for consideration, the court shall determine: circumstances which matter for case and the facts which are subject to establishment and are the basis for requirements and objections; nature of disputable legal relationship and contents of legal requirements; the material law which regulates disputable legal relationship; resolve issue of the list of persons who will participate in case; find out what proofs in confirmation of the specified facts are; determine circle of proofs according to nature of disputable legal relationship and explain what of the parties should prove certain circumstances; take measures for providing appearance in judicial session, and also promote dispute settlement before judicial review.
3. For the purpose of dispute settlement before judicial review courts shall find out: whether the claimant refuses the claim whether the defendant recognizes the claim, whether wish the party to sign the voluntary settlement or to submit case of reference tribunal. The specified legal proceedings can be made only in claim production and shall be performed not formally; courts shall take effective measures to conciliation of the parties and dispute settlement before judicial review, keeping at the same time objectivity and objectiveness. In particular, they shall explain to the parties of possibility of consideration of the case in reference tribunal and procedure for accomplishment of its decision, essence and the procedure of implementation of each action and their effect.
4. Making in preliminary judicial session the decision in connection with recognition by the defendant of the claim or closing proceeedings in connection with refusal of the claimant of the claim or recognition of the voluntary settlement signed between the parties, courts shall consider provisions of Articles 174, 175 GPK and before adoption of the corresponding judgment to explain to the parties of effect of making of the corresponding legal proceedings.
In case of recognition by the defendant (or his representative to absence in the order of the corresponding restrictions) the claim perhaps only decision making about satisfaction of the claim, but not about satisfaction of the claim partially or about refusal in its satisfaction. If for this purpose there are no legal causes, the court decides determination about refusal in acceptance of recognition by the defendant of the claim and continues consideration of the case. Recognition of the claim shall be unconditional and if several defendants, then decision making about satisfaction of the claim in the presence for this purpose of legal causes perhaps only in case of recognition of the claim by all defendants take part in case. It is necessary to differentiate recognition by the defendant of the claim from recognition of circumstances of the claim by it that according to part one of Article of 61 GPK exempts the claimant only from dokazaniye of these circumstances.
Making the decision on the substance of dispute or deciding determinations in preliminary judicial session, the court in motivation part of the judgment specifies only about actions of the parties according to the order the procedural and substantive rights and the measures for check of such actions performed by court.
The stop, closing of proceeedings or leaving of the statement without consideration (Article 201, of 202, of 205, 207 GPK) when carrying out preliminary judicial session meets the requirements of GPK.
5. Preliminary judicial session is procedural form of preparation of case for judicial review and shall be appointed and carried out within one month from the opening day of proceeedings. At the same time courts shall take into account that for some categories of cases the reduced terms of their consideration are established (Article part one 157 GPK) therefore preliminary judicial session should be appointed and carried out to such time to provide their timely consideration.
Adjournment of carrying out preliminary judicial session according to Article part eight 130 GPK is possible only according to the statement of one or both parties or their representatives to condition of establishment by court of availability of reasonable excuses for their absence in court. The possibility of the announcement of break in carrying out preliminary judicial session due to the need of the message or provision of proofs (for example, in case of presentation of the counter action), for dispute settlement before judicial review, presentation of the counter action or claim of the third party with independent requirements is not excluded. However both adjournment of carrying out preliminary judicial session, and the announcement of break in it shall be performed within fixed term of its carrying out (Article 129 GPK).
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