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RESOLUTION OF THE PLENUM OF THE SUPREME ECONOMIC COURT OF UKRAINE

of February 25, 2016 No. 4

About some questions of practice of the dispute resolution arising from corporate legal relationship

According to Item "About judicial system and the status of judges" the plenum of the Supreme Economic Court of Ukraine decides 6 parts two of article 36 of the Law of Ukraine:

For the purpose of ensuring identical and correct application of the legislation in case of the decision with economic courts of the disputes arising from corporate legal relationship to provide the following explanations.

Economic courts should be guided by the Economic Procedure Code of Ukraine (further - HPK of Ukraine), the Civil code of Ukraine (further - the Civil Code of Ukraine), the Economic code of Ukraine (further - HK of Ukraine), the Laws of Ukraine "About economic societies", "About joint-stock companies", "About securities and the stock market", "About depositary system of Ukraine", "About state registration of legal entities, physical persons entrepreneurs and public forming", "About farm", "About cooperation" and other regulatory legal acts regulating corporate legal relationship.

Considering changes in the legislation and step-by-step entry into force of separate legal acts of Ukraine, economic courts in case of the decision of corporate disputes need to apply regulations of substantive and procedural law by the rule of their action in time:

- the regulations of the substantive right operating at the time of emergence of disputable legal relationship;

- the regulations of the procedural law operating at the time of making of the corresponding legal proceedings.

1. Jurisdiction and cognizance of cases

1.1. The cases arising from the corporate relations in disputes between the legal entity and his participants (founders, shareholders, members), including the participant who was disposed, and also between members (founders, shareholders, members) of the legal entity connected with creation, activities, management and the termination of activities of such person except employment disputes are subordinated to economic courts.

In case of determination of jurisdiction of cases of this category courts should consider that, considering systems analysis of provisions of Article 84 of Civil Code of Ukraine, Article part five 63, of parts one and third article 167 HK of Ukraine, the Law of Ukraine "About economic societies", the Law of Ukraine "About joint-stock companies", Articles 1, 19 and parts one, the sixth article 20 of the Law of Ukraine "About farm", Articles 6, of 8, 19 and 21 Laws of Ukraine "About cooperation" the corporate relations arise, in particular, in the economic societies, production cooperatives, farms, private enterprises founded on property of two or more persons.

1.2. In sense of provisions of item 4 of part one of article 12 HPK of Ukraine, article 167 HK of Ukraine, article 2 of the Law of Ukraine "About joint-stock companies" the parties in corporate dispute are:

1) the legal entity and his participant (the founder, the shareholder, the member), including the participant who was disposed;

2) members (founders, shareholders, members) of the legal entity.

The participant who was disposed from the list of the legal entity can be the party of corporate dispute on determination and collection which is due to it to payment of cost of share of property of the legal entity about recognition invalid decisions on its exception of the list of the legal entity, and also on recognition invalid other decisions of the legal entity if these decisions are made during the period to exit (exception) of the participant, and relevant requirements are proved by violation of its corporate laws at the time of adoption of such decision.

1.3. Disputes over claims of members of the legal entity on recognition invalid constituent documents or their parts, changes to them belong to corporate disputes as constituent documents of the legal entity affirm during its creation, represented for state registration and further govern the relations on management of it. Disputes on liquidation of the legal entity or cancellation of its state registration over claims of participants (founders, shareholders, members) to this legal entity also are corporate.

1.4. According to part three of article 7 of the Law of Ukraine "About joint-stock companies" disputes over claims of shareholders of private joint-stock companies (further - CHAO) about the translation of the rights to them and the obligations of the share purchaser in connection with violation of their privilege to share acquisition sold by other shareholders of society are corporate and subordinated to economic courts.

Considering Item provisions 7 parts two of Article 13, of articles 15 and 27 of the Law of Ukraine "About joint-stock companies" disputes over claims of shareholders of public joint stock companies (further - public joint stock company) and shareholders preferred shareholders about the translation of the rights to them and obligations of the share purchaser in connection with violation of their privilege to share acquisition of additional issue which extend by private placement, are corporate and are subordinated to economic courts.

According to part one of article 167 HK of Ukraine, part two of Article 147 and part four of Article 151 of Civil Code of Ukraine, part three of Article 53 and part three of article 65 of the Law of Ukraine "About economic societies" cases on the claim of the member of limited liability company (further - Ltd company) or the participant of additional liability company (further - ODO) about transfer on the participant of the rights and obligations of the buyer in connection with violation of its privilege to purchase of share (its part) in the authorized capital of society are subordinated to economic courts.

1.5. To economic courts based on item 4 of part one of article 12 HPK of Ukraine disputes between members (founders, shareholders, members) of the legal entity and the legal entity on the property right to the property transferred to the legal entity as contribution to the authorized (share) capital are subordinated.

1.6. When the claimant (the founder, the participant, the shareholder, the member of the legal entity) at the same time (within one action for declaration) declares to the subject of powers of authority of the requirement which are derivative of other requirements in corporate dispute, case is subject to consideration in court.

Those, in particular, are requirements about cancellation of registration of share issue for cases on recognition invalid decisions of general meeting on increase in the authorized capital of joint-stock company (further - the joint-stock company) and modification of system of accounting of the rights to personalized securities.

1.7. To corporate disputes do not belong and decide general or economic courts depending on subject structure of the parties:

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