of February 27, 2012 No. 01-06/224/2012
Economic courts of Ukraine
About amendment to the Information letter of the Supreme Economic Court of Ukraine of 15.03.2011 No. 01-06/249 "About resolutions of the Supreme Court of Ukraine, the judgments of economic courts made by results of review"
In addition to the Information letter of the Supreme Economic Court of Ukraine of 15.03.2011 No. 01-06/249 "About resolutions of the Supreme Court of Ukraine, the judgments of economic courts made by results of review" we report the legal line items of the Supreme Court of Ukraine stated in resolutions, the judgments of economic courts made by results of review according to the procedure, provided by the Section XII-2 of the Economic Procedure Code of Ukraine, in disputes:
1) concerning the conclusion, changes, termination, recognition invalid agreements:
- the arrangement of the parties on agreement cancelation of leasing does not exclude carrying out between the parties of payment under obligations which arose before agreement cancelation, including application of measures of property responsibility for failure to carry out (inadequate accomplishment) of obligations taking into account terms of the contract and structure of leasing payments (the resolution of 19.12.2011 No. 7/114/10);
2) in the field of insurance activity:
- The law of Ukraine "About compulsory insurance of civil responsibility of owners of land vehicles" (in the edition operating for the period of emergence of disputable legal relationship) did not contain the bases for refusal in satisfaction of the requirement of the insurer who paid insurance indemnity, to person responsible for the caused loss, about compensation of the actual amounts paid to them in the limits provided by the agreement of compulsory insurance of civil responsibility and determines availability of the right of the insurer to submission of the recourse action (resolutions of 07.11.2011 No. 48/562, of 30.01.2012 No. 23/106);
3) the monetary commitments resulting from violation:
- contractual legal relationship between payers and receivers of money concerning responsibility for untimely accomplishment of monetary commitments are settled by the Law of Ukraine "About responsibility for untimely accomplishment of monetary commitments". Therefore, what method would not determine in the agreement the penalty fee size, it cannot exceed that size which is established by the law as limiting, that is for delay of payment under the agreement only the penalty fee which amount does not exceed that which is calculated based on double discount rate of the National Bank of Ukraine (the resolution of 24.10.2011 No. 25/187, of 07.11.2011 No. 5002-2/5109-2010) can be collected;
- the obligation of the defendant to return to the claimant the advance payment amount for the goods undersupplied in time sentenced to collection by the decision of economic court is monetary commitment and consequently its failure to carry out pulls application concerning the debtor of the effects provided by part two of Article 625 of the Civil code of Ukraine (the resolution of 05.12.2011 No. 16/164(2010));
4) in the field of banking activity:
- the appeal of the client to bank with the claim for the obligation to close the account judicially answers protection methods, stipulated in Clause 16 Civil codes of Ukraine and article 20 of the Economic code of Ukraine as, addressing with such requirement, the claimant actually asks court to force the defendant to fulfill the duty assigned to it by terms of the contract and instructions of the legislation (the resolution of 28.11.2011 No. 27/11);
5) concerning compensation of damage:
- for origin at person of obligation on compensation of damage according to requirements of part two of Article 1172 of Civil Code of Ukraine, except availability of general terms (damage availability, illegality of behavior, wine and cause and effect relationship between losses and delinquent behavior), availability of special conditions which are determined depending on subject structure of the corresponding relations is necessary. Under such circumstances there is no legal basis for assignment on the defendant as lessee of the parcel of land of responsibility for caused property damage as a result of violation of the law about protection of the surrounding environment if works were carried out by the subcontract organization (the resolution of 28.11.2011 No. 36/190-45/142);
6) concerning accomplishment of economic obligations:
- as the legislation regulating rent legal relationship establishes possibility of penalty for all the time of delay of accomplishment of the obligation concerning return of object of lease, reduction of term of charge of penalty up to six months is groundless (the resolution of 26.12.2011 No. 5005/2712/2011);
- failure to carry out by the defendant of the obligations in payment of the accepted products in the presence of the means provided in the Government budget of Ukraine for the corresponding year is violation of requirements of Article 526 of the Civil code of Ukraine (the resolution of 26.12.2011 No. 9/400);
- according to instructions of the Law of Ukraine "About providing requirements of creditors and registration of burdenings" (which is the special law concerning legal regime of regulation of burdenings of personal estate) in case of satisfaction of the claim for the address of collection regarding the providing burdening the court can choose one of methods of the address of collection chosen by otyagotitel at discretion, in particular, by receipt of subject of pledge in property of the pawnbroker (the resolution of 26.12.2011 No. 4/1);
7) arising from corporate legal relationship:
- from the moment of the notification the member of society about secession of his participants with payment of the property cost portion ought to it society has obligation to pay the cost of this share in the terms determined by article 54 of the Law of Ukraine "About economic societies" which failure to carry out attracts stipulated in Article 625 Civil codes of Ukraine of effect of delay of accomplishment of monetary commitment (the resolution of 12.12.2011 No. 14/214(10));
8) in hearing of cases about bankruptcy:
- proceeedings about bankruptcy are subject to the termination if during trial of case by economic courts the bases for recognition of the debtor by the bankrupt provided by the law and opening of the liquidating procedure are not established, and the debtor does not submit the proofs confirming signs of its insolvency (the resolution of 26.12.2011 No. 16/87/09-21/134/09);
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