RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of March 16, 2012 No. 4

About court practice of the decision by administrative courts of the disputes arising in connection with application of Articles 39, of 48, of 50, of 52, 54 Laws of Ukraine "About the status and social protection of the citizens injured with the Chernobyl catastrophic crash"

For ensuring the correct and identical application by administrative courts of Articles 39, of 48, of 50, of 52, 54 Laws of Ukraine of February 28, 1991 No. 796-XII "About the status and social protection of the citizens injured with the Chernobyl catastrophic crash" (further - the Law on the status and social protection of the citizens injured with the Chernobyl catastrophic crash), the Plenum of the Supreme administrative court of Ukraine Decides:

2. Resolving issue of operation of the law in time, courts need to consider that operation of the law or its separate provisions stops:

a) legislature, in the way of adoption of the relevant law;

b) automatically, in connection with the termination of term which operation of the law is expected (the laws on the Government budget of Ukraine for the corresponding year, etc.);

c) according to the solution of the Constitutional Court of Ukraine in case of recognition unconstitutional the law or its separate provisions (article 152 of the Constitution of Ukraine).

The temporary stop of operation of the law or its separate provisions does not terminate the law; after the termination of term for which their action is stopped this action is revolved.

Recognition unconstitutional separate provisions of the law stops their action, and in case of recognition unconstitutional provisions which make changes to the law, at the same time resumes action of the previous edition of regulation if another is not specified in the solution of the Constitutional Court of Ukraine.

Courts need to pay attention that in case of availability of collisions between regulations of the laws which have identical legal force that from them which is accepted later is subject to application.

Besides, courts should consider the Solution of the Constitutional Court of Ukraine of January 25, 2012 No. 3-rp/2012, which this interpretation that regulatory legal acts of the Cabinet of Ministers of Ukraine in case of the solution of cases on social protection are subject to application when they are issued within its competence, on basis and on accomplishment of the Budget code of Ukraine, the law on the Government budget of Ukraine for the corresponding year and other laws of Ukraine.

Considering feature of action in time of the law on the Government budget of Ukraine for the corresponding year, the regulatory legal act of the Cabinet of Ministers of Ukraine issued on its accomplishment is also effective within fiscal year.

3. Persons who have the right to the surcharge determined by article 39 of the Law on the status and social protection of the citizens injured with the Chernobyl catastrophic crash and taking into account whose status the amount of surcharge is differentiated are citizens, including pensioners who work at the territories of radioactive pollution, unemployed pensioners who live in these territories, students who study there, citizens who work in exclusion zone, and also in zone of unconditional (obligatory) settling out after complete settling out of inhabitants.

The list of the settlements carried to zones of radioactive pollution as a result of the Chernobyl catastrophic crash is approved by the resolution of the Cabinet of Ministers of the Ukrainian SSR of July 23, 1991 No. 106 "About the organization of accomplishment of resolutions of the Verkhovna Rada of the Ukrainian SSR on procedure for entry into force of the laws of the Ukrainian SSR "About legal regime of the territory which underwent to radioactive pollution as a result of the Chernobyl catastrophic crash" and "About the status and social protection of the citizens injured with the Chernobyl catastrophic crash".

According to Item 5 of the Procedure for use of means of the government budget for accomplishment of the programs connected with social protection of the citizens injured with the Chernobyl catastrophic crash, the Cabinet of Ministers of Ukraine approved by the resolution of September 20, 2005 No. 936, surcharge to citizens who work at the territories of radioactive pollution it is carried out in the place of the main work (service) of citizens by the companies, organizations, the organizations (further - the companies) and physical litsamisubjekta of business activity without creation of the legal entity, organizations, the organizations and military units according to the settlement data submitted to authorized body on the form approved by Minsotspolitiki.

Courts need to consider that the specified surcharge is not included into salary structure, and is social guarantee which payment is compensated to the companies by managements of work and social protection of the population.

Surcharge is paid to unemployed pensioners who live in the territories of radioactive pollution by bodies of the Pension fund of Ukraine.

4. Initial criterion of charge of surcharge, certain article 39 of the Law on the status and social protection of the citizens injured with the Chernobyl catastrophic crash, the minimum wage is.

The size of minimum wage on 1998, was established 1999 by the laws of Ukraine on establishment of size of cost of limit of low-security and the size of minimum wage for the corresponding years, for 2000-2003 - the laws of Ukraine on establishment of the size of minimum wage for the corresponding years, for 2004-2011 - the laws of Ukraine on the Government budget of Ukraine for the corresponding years.

No. 836 "About compensation payments to persons injured with the Chernobyl catastrophic crash" the amount of surcharge to citizens who work at the territories of radioactive pollution is determined by the resolution of the Cabinet of Ministers of Ukraine of July 26, 1996 in the absolute amounts.

Proceeding from the general principles of priority of the laws over bylaws, in case of determination of the amount of payments to application provisions of article 39 of the Law on the status and social protection of the citizens injured with the Chernobyl catastrophic crash, taking into account their action in time are subject, namely: from June 20, 1996 to December 31, 2005, from July 9 to December 31, 2007, from May 22, 2008 to July 23, 2011.

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