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THE RESOLUTION OF THE PLENUM OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES OF UKRAINE

of March 30, 2012 No. 4

About application of the civil procedural legislation in case of review of judgments in connection with again revealed circumstances

For the purpose of the correct and identical application of the Code of civil procedure of Ukraine (further - GPK) in case of review of judgments which finish consideration of the case, taken legal effect, in connection with again revealed circumstances plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases of POSTANOVLYAET to provide to courts such explanations:

1. The review of the judgments which took legal effect provided by Chapter 4 of the Section V GPK in connection with again revealed circumstances is independent stage of civil process in which the court checks availability or lack of legal basis for this purpose, - dispositive facts which existed for the period of consideration of the case, but were not and could not be known to the applicant though their submission to court could entail acceptance of another on contents of the judgment.

The satisfaction with court of the statement for review of the judgment in connection with again revealed circumstances contrary to requirements of GPK breaks the principle of legal definiteness and the applicant's right to access to justice which is guaranteed by Item 1 of article 6 of the Convention on human rights protection and fundamental freedoms (RIM, 4.XI.1950).

2. According to part one of Article of 361 GPK in connection with again revealed circumstances the decision or determination of court which finish consideration of the case, taken legal effect, and also the writ can be reviewed.

With respect thereto are subject to such review the resolution of the Trial Court (including the correspondence or additional decision) made on any kind of judicial proceedings, which took legal effect and also the judgments of appeal or cassation instance by which the decision was changed or made the new decision.

Determinations which finish consideration of the case are:

- determinations of Trial Court about closing of proceeedings or leaving of the statement without consideration; refusal in allowance of the application about cancellation of the decision of reference tribunal; to cancellation of the decision of reference tribunal; issue of the executive letter and refusal in issue of the executive letter on forced accomplishment of the decision of reference tribunal;

- determinations of court of appeal or cassation instance about cancellation of the judgment with closing of proceeedings or leaving of the statement without consideration.

Due to again revealed circumstances the writ which took legal effect can be reviewed or changed.

Determinations of court of the first, appeal or cassation instance about refusal in allowance of the application about review of the judgment in connection with again revealed circumstances, determinations of court of appeal or cassation instance which cancel the judgment and case is sent for new trial, determinations of Appeal Court about refusal in opening of appeal production, determinations of court of cassation instance about refusal in opening of cassation production are not determinations which finish consideration of the case therefore they cannot be reviewed in connection with again revealed circumstances.

If several claims were united in one production (Article part two 118, Article 126 GPK), the decision can be reviewed only regarding those requirements which concern again revealed circumstances.

3. Again revealed circumstances are dispositive facts which have essential value for consideration of the case and existed for the period of consideration of the case, but were not and could not be known to the applicant, and also circumstances which arose after the introduction of the judgment in legal force and are carried by the law to again revealed circumstances (part two of Article of 361 GPK).

Necessary conditions of again revealed circumstances determined by Items 1, 2 parts two of Article of 361 GPK are the fact that they existed for the period of consideration of the case; these circumstances could not be known to the applicant for the period of consideration of the case; they enter proof subject of case and can affect conclusions of court about the rights and obligations of persons who are taking part in case.

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