of December 26, 2011 No. 17
About some questions of practice of review of decisions, determinations, resolutions on newly discovered facts
For the purpose of ensuring identical and correct application of regulations of the Economic Procedure Code of Ukraine (further - HPK) about review of decisions, resolutions (further - the judgment) on newly discovered facts to make to economic courts of Ukraine the following explanations.
1. Article 112 HPK determines the exhaustive list of the bases for review of judgments by newly discovered facts.
Review of the judgment on newly discovered facts are separate procedural form of legal procedure which is determined by the legal nature of these circumstances.
2. To newly discovered facts the substantive facts on which requirements and objections of the parties, and also other facts important for the correct dispute resolution or consideration of the case about bankruptcy are based belong. Necessary signs of existence of newly discovered facts is simultaneous availability of the following three conditions: first, their existence for the period of consideration of the case, secondly, the fact that these circumstances could not be known to the applicant at the time of consideration of the case, thirdly, materiality these circumstances for consideration of the case (i.e. when accounting by their court consequence of adoption of other judgment, than which was accepted).
Newly discovered facts on the legal essence are actual data which in accordance with the established procedure confute the facts which were the basis for the judgment. These circumstances shall be properly certified, is confirmed with competent and admissible evidences.
Cannot be considered as newly discovered fact which is based on revaluation of those proofs which were already estimated by Arbitration Court proceedings on the reference.
It is necessary to differentiate accurately concepts of the new found circumstance (as fact) and the new proof (as confirmation of the fact) so, cannot be considered as circumstances delivery notes, calculations, acts, etc. which by the legal nature is new proofs are provided by the participant of legal procedure of the letter.
3. Origin new or change of circumstances after dispute decision or consideration of the case about bankruptcy cannot be the basis for change or cancellation of the judgment by rules of the Section XIII HPK.
In clarification of availability of the bases for review of the judgment on newly discovered facts according to Items 2-5 of part two of article 112 HPK only the fact of establishment of the corresponding circumstances after dispute decision or consideration of the case about bankruptcy matters.
4. Day of establishment of the newly discovered facts specified in Item of 1 part two of article 112 HPK it is necessary to consider day when they became or shall become known to the applicant.
As for the circumstances specified in Items 2-5 of part two of the called Article, day of their installation is determined according to instructions of Items 2-4 of part two of article 113 HPK.
5. Cannot be considered opened again circumstances are established based on proofs which were not timely provided by the parties or the prosecutor. In case of provision of such proofs in the course of review of the judgment by rules of the Section XIII HPK the economic court shall take out determination about leaving of the judgment without change. At the same time the concerned party is not deprived of the right to appeal the judgment in appeal procedure with observance of requirements of HPK, in particular, of article 101 of this Code.
Also cannot be recognized opened again circumstances to which the participant of legal procedure in the explanations in court of any of instances or which could be established by court in case of fulfillment of requirements of the procedural law, in particular, of article 38 HPK referred.
6. Cancellation or change of the regulation on which the judgment was based can be considered as newly discovered fact (in sense of Item 1 of article 112 HPK) only under condition if in the act which cancels or changes previous, is specified about provision to it retroactive effect.
Conclusion of the Constitutional Court of Ukraine about official interpretation of provisions of the Constitution of Ukraine and the laws of Ukraine cannot be considered as newly discovered fact.
7. According to article 113 HPK the judgment of economic court can be reviewed on newly discovered facts only according to the statement of the party, the prosecutor, the third parties. Therefore, economic courts have no right to review the judgment by rules of the Section XIII HPK on own initiative.
In review of the judgment on newly discovered facts it is necessary to consider the following features of legal status of the participant of legal procedure according to which statement this review is performed.
7.1. Article 25 HPK provides possibility of procedural legal succession. As the legal succession is possible at any stage of process, the legal successor also has the right to appeal to economic court with the statement for review of the judgment on newly discovered facts.
7.2. On contents of article 113 HPK and part four of article 37 of the Law of Ukraine "About prosecutor's office" the judgment can be reviewed on newly discovered facts, in particular, according to the statement of the Attorney-General of Ukraine, his first deputy and deputy, prosecutor of the Autonomous Republic of Crimea, areas, cities of Kiev and Sevastopol and the prosecutors equated to them.
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