Name of the Kyrgyz Republic
of February 17, 2016 No. 2-r
On the case of check of constitutionality of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic, in connection with Kochkorbayeva N. B. address for the benefit of Pharmation open joint stock company
The constitutional chamber of the Supreme Court of the Kyrgyz Republic in structure:
the chairman - the judge Kasymaliyev M. Sh, judges Abdiyev K., Aydarbekova Ch. A., Kirgizbayeva K. M., Mamyrova E. T., Narynbekova A. O., Oskonbayeva E. Zh., Osmonova Ch. O., Saalayev Zh. I.,
in case of the secretary of Dzholgokpayevoy S.A.,
the representative of the addressing party - Kochkorbayeva Nurili Bayyshevna representing the interests of Pharmation open joint stock company by proxy
the agent of the party - the defendant Dzhorupbekovoy Aygul Ashyrbekovny, the Kyrgyz Republic representing the interests of Jogorku Kenesh by proxy,
other persons - Chotkarayev Kamil Aliyaskarovich, the representative of the Government of the Kyrgyz Republic by proxy, to Bokoshova Zhyldyz Seyitbekovny, the representative of the Supreme Court of the Kyrgyz Republic by proxy,
being guided by parts 1, of 6, of 8, of the 9 and 10 article 97 of the Constitution of the Kyrgyz Republic, Articles 4, of 18, of 19, 37 and 42 constitutional Laws of the Kyrgyz Republic "About the Constitutional chamber of the Supreme Court of the Kyrgyz Republic", considered case on check of constitutionality of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic in proceeding in open court.
Reason for consideration of the case was Kochkorbayeva N. B. petition for the benefit of Pharmation open joint stock company.
The basis to consideration of this case was the found uncertainty in question of whether there correspond Constitutions of the Kyrgyz Republic of regulation of Item 2 of Article 215 of the Civil code of the Kyrgyz Republic which constitutionality is disputed by the applicant.
Having heard information of the judge-speaker Kirgizbayev K. M., the case which was carrying out preparation for judicial session and having researched the provided materials, the Constitutional chamber of the Supreme Court of the Kyrgyz Republic
In the Constitutional chamber of the Supreme Court of the Kyrgyz Republic the petition from the representative of Pharmation open joint stock company Kochkorbayeva N. B. (further - joint stock company "Pharmacy) about recognition of Item 1 of Article 199 of the Civil code of the Kyrgyz Republic to the contradicting Item 8 of part 5 of article 20 of the Constitution of the Kyrgyz Republic and Items 1, 2 Articles 215 of the Civil code of the Kyrgyz Republic contradicting Item 8 of part 5 of Article 20, of part 1 of article 40 of the Constitution of the Kyrgyz Republic on September 15, 2015 arrived.
Follows from the petition of the applicant that between JSC Pharmation and the Ministry of Finance of the Kyrgyz Republic in July, 1998 the credit agreement No. 17/02 on provision of commodity loan in the form of medicines on the amount 396057, of 64 US dollars which in somovy equivalent constituted 11620331 som was signed. At the same time the applicant claims that the range of the medicines transferred to JSC Pharmation for realization was established without market situation and opinion of JSC Pharmation, and the purchase of medicines was performed by chief specialists of the Ministry of Health of the Kyrgyz Republic. As a result of it, according to the applicant, JSC Pharmation was not able to realize the specified medicines. Moreover, drugs appeared the expired, and charged percent on commodity loan were above the main amount of debt.
The state fund of development of economy under the Ministry of Finance of the Kyrgyz Republic (further - GFRE) appealed to interdistrict court of the city of Bishkek with the claim to JSC Pharmation for collection from the defendant for benefit of GFRE under the Ministry of Finance of the Kyrgyz Republic overdue debt in the amount of 20802540 som.
This case was connected by determination of interdistrict court of the city of Bishkek of May 14, 2015 in one production to homogeneous cases on the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic about recognition invalid the credit agreement No. 17/02 and debt obligation of February 16, 1998 in the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic about recognition performed obligations on debt obligation of February 6, 1997.
Production in the claim of JSC Pharmation to the Ministry of Finance of the Kyrgyz Republic was stopped by determination of court of September 1, 2015 in connection with the expiration of limitation period.
As the basis of suit abatement in determination it is made a reference to Article 215 of the Civil code of the Kyrgyz Republic according to which requirements about protection of the violated right judicially can be imposed in court before the expiration of limitation period. The term of limitation period according to requirements about protection of the violated right of legal entities (irrespective of patterns of ownership, including state bodies and local government bodies), the citizens performing business activity and also the other persons imposing in court requirements about protection of the violated founder's rights (the participant, the shareholder) of the legal entity or the owner of its property, and equally violated rights of corporeal, liability and other property rights to objects of business activity, is not subject to recovery.
Meanwhile, Kochkorbayeva N. B. considers that the credit agreement No. 17/02 was signed with violation of the law. Gives the subitem 1 of Item 2 of Article 179 of the Civil code of the Kyrgyz Republic according to which the notarial certificate of transactions is obligatory in the cases specified in the law as reasons. Non-compliance with notarial form of the transaction, according to Item 1 of Article 181 of the Civil code of the Kyrgyz Republic, attracts its invalidity. Such transaction is considered insignificant, and the right - invalid.
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