of October 24, 2011 No. 11
About some questions of practice of application of the Section XII - 1 Economic Procedure Code of Ukraine
For the purpose of ensuring identical and correct application of the legislation on review of judgments in cassation procedure to make to economic courts of Ukraine such explanations.
1. The writ of appeal is submitted in the Supreme Economic Court of Ukraine as court of cassation instance only through Economic Court of Appeal (Articles 108, 109 Economic Procedure Codes of Ukraine, further - HPK).
If the writ of appeal is mistakenly made through local economic court in which there are case papers, the last instantly sends this claim together with case papers to Appeal Court for accomplishment of requirements of part two of article 109 HPK by it.
According to part five of article 85 HPK the decision of local economic court appealed in appeal procedure if it is not cancelled, takes legal effect after consideration of the case by Economic Court of Appeal. The resolution of appellate instance takes legal effect from the date of its acceptance (part three to article 105 of the called Code). Therefore, for the purpose of proper ensuring accomplishment of judgments which took legal effect economic courts need to proceed from it.
Economic court of appellate instance, having accepted the resolution by results of review of resolution of the Trial Court, shall return materials of the corresponding case to local economic court. If the specified resolution is appealed in cassation procedure, case papers in case of need of the edition and in this case shall be instantly returned by Trial Court of the order in pursuance of the judgment in local economic court which after issue to the claimant of the specified order also instantly sends them to court of cassation instance. At the same time the edition is not allowed by local economic court of the order until case material return from last resort court including in the presence of such instance of the copy of the corresponding judgment certified by court.
1 - 1. On content of parts one, third and fifth Article 4 - 6 maximum allowable concentrations in total and interrelations with Article 2 part three - 1 of this Code of forming of boards of judges on consideration of specific cases are performed with use of the automated system of document flow of court. at the same time according to subitem 3.1.7 of Item 3.1 of the Regulations on the automated system of document flow of the court approved by the decision of Judicial council of Ukraine of 26.11.2010 No. 30 (with subsequent changes and amendments), the principles of forming of boards of judges are determined by meeting of judges of the relevant court.
Such principles, taking into account the provisions of the law of Ukraine "About judicial system and the status of judges" and the called Provision, shall be determined in court of cassation instance in the form of the decision of meeting of this court, and their requirements shall observe strictly in justice implementation. At the same time determination of joint structure of court by other structure of the same court is not allowed.
2. The question of acceptance or return of the writ of appeal is solved board of judges without challenge of persons who are taking part in case. By results of the solution of appropriate question determination is taken out.
In case of appeal by several persons in the procedure for determination or the resolution of Economic Court of Appeal by cassation instance established by HPK all claims meeting the requirements of HPK are accepted in production and are considered in one cassation production. On each of them determination about acceptance in production is taken out, and in case of simultaneous receipt of such claims they can be accepted in production by one determination.
In case in the Supreme Economic Court of Ukraine the writ of appeal meeting the requirements of HPK on the judgment concerning which cassation production is already opened arrives, then it is accepted in joint to consideration with earlier made writ of appeal about what determination is taken out.
3. The cassation instance has no right to return the writ of appeal the cover letter or by other method which is not provided by the law.
Return of the writ of appeal is performed by the Supreme Economic Court of Ukraine only on the bases specified in part two of Article 110 and in part one of article 111-3 HPK Ukraine.
In application of Item 3 parts one of the called HPK regulation the economic court needs to consider it. The settlement document of the established form which confirms provision of services of mail service (the original of the cash register receipt, the settlement receipt and so forth) can be considered as the competent evidence of posylaniye to other party litigant of the copy of the writ of appeal and the documents attached to it.
4. Determination of local economic court can be reviewed in cassation procedure separately from the decision in case of simultaneous availability of two conditions:
- this determination belongs to number specified in part one of article 106 HPK;
- it was already reviewed in appeal procedure.
As determinations of local economic court which are taken out during execution of the judgment it is impossible to appeal along with appeal of the decision of economic court, such determinations including about refusal in making of the legal proceedings specified in Items 17, of 18, of 20, to part one of article 106 HPK can be reviewed in cassation procedure.
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